HKSAR v. NG KA LEUNG

DCCC 600/2023

[2024] HKDC 764

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 600 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of “Causing grievous bodily harm by dangerous driving”, contrary to section 36A of the Road Traffic Ordinance, Cap 374.

Summary of Facts

2.  The Summary of Facts admitted by the defendant are as follows:

(1)  the accident location is a six-lane carriageway on the eastbound of Mong Kok Road. The first four lanes run straight, while the remaining two right-turn lanes lead to Shanghai Street. At the time of the accident, the weather was fine, the road was dry and there was sufficient street light. The speed limit of 50 km/hr was imposed. There are pedestrian crossings regulated by traffic lights at the junction of Shanghai Street and Mong Kok Road, Mong Kok (the Junction).

(2)  At around 6:34 pm on 8 January 2023, D was driving a private car bearing registration number CD256 (the Vehicle)  and made a right turn from the 5^th left lane of Argyle Street (westbound)  into Reclamation Street. The Vehicle overtook a private car bearing registration number TH338 and then continued driving onto the 3^rd lane of Mong Kok Road (Eastbound). When the Vehicle was crossing the junction of Mong Kok Road and Shanghai Street, it hit a pedestrian Mr Chang Chi Man Semile (Chang), who was jaywalking. As a result, Chang fell backwards and hit the ground with the back of his head. The case was reported to the Police.

(3)  At around 6:44 pm on the same day, PC14561 (PW1)  arrived at the scene. Chang was sent to Queen Elizabeth Hospital by ambulance.

Arrest and Caution

(4)  At around 7:30 pm on the same day, the defendant was arrested for “Dangerous Driving Causing Grievous Bodily Harm”. A cautioned video-recorded interview was conducted with the defendant on 17 February 2023 in which he stated, inter alia:

(i)  the defendant was the driver of the Vehicle on 8 January 2023 and he intended to go to Mong Kok from Shek Kip Mei;

(ii)  Prior to the accident, the defendant was driving on the 4^th left lane of Reclamation Street and later turned right to Mong Kok Road;

(iii)  The defendant remembered seeing jaywalkers crossing the road against the red pedestrian light when he was driving along Mong Kok Road towards Shanghai Street; and

(iv)  When the Vehicle was approaching the pedestrian crossing at the Junction, a jaywalking male rushed out. The defendant applied his brakes to slow down the Vehicle and sounded the horn, but the nearside front of the Vehicle collided with the pedestrian.

Car Camera Footage

(5)  The car camera of the Vehicle captured the following:

Screen Time (2023-01-08)	Content
18:58:11	-  The Vehicle passed through the pedestrian crossing at Reclamation Street and made a right turn into Mong Kok Road. -  There were jaywalkers and the Vehicle did not appear to have slowed down.
18:58:16	-  The Vehicle was approaching the pedestrian crossings at the Junction. -  Chang was well exposed at that time.
18:58:18	-  The Vehicle collided with Chang.

(6)  The defendant was listening to music on the Vehicle at the material time.

Forensic Scientist Report

(7)  Dr Wong Fai George (PW3), the forensic scientist of the Government Laboratory, has calculated the average speed of the Vehicle prior to the collision. It was found that the Vehicle was travelling at a speed of 56 ±6 km/h when he was travelling along Reclamation Street and that the speed decelerated to 46 ±5 km/h when he was making a right turn onto Mong Kok Road up until the moment before the collision.

Medical Condition of Chang

(8)  Chang was taken to the Accident and Emergency Department (A&E)  of Queen Elizabeth Hospital at around 6:54 pm on 8 January 2023 after the accident. He was diagnosed with traumatic brain injury and the computerised tomography of the whole body revealed that grievous bodily injuries were sustained by Chang:

(i)  Fractures involving the left parietal, sphenoid bone on the left, squamous, tympanic and mastoid parts of the left temporal bone, right lamina papyracea, and left frontoparietal scalp hematoma;

(ii)  Diffuse subarachnoid haemorrhage, 0.7 cm thick acute subdural haemorrhage over the right cerebral convexity, 0.3 cm subdural haemorrhage over the left Parieto-temporal lobe convexity;

(iii)  Contusion changes over the right frontal, left parietal and bilateral temporal lobes, sulcal effacement was seen in the bilateral cerebral hemispheres, in keeping with edema changes;

(iv)  Fractured nasal bone, hyperdense blood seen in the external auditory canal and middle ear cavity, hyperdense blood in nasal cavity, ethmoidal sinuses; and

(v)  Fractured 5^th - 6^th ribs.

(9)  Chang was later admitted under the care of the Department of Neurosurgery on 8 January 2023 via A&E.

The Offence

(10)  At the material time, the defendant caused grievous bodily harm to Chang by driving the Vehicle on a road dangerously:

(a)  at 18:58:11 hours, the Vehicle passed through the pedestrian crossing at Reclamation Street when there were pedestrians on it and did not slow down;

(b)  when the Vehicle turned right into Mongkok Road, Chang was already well exposed near the 2^nd and 3^rd lane of Mongkok Road. The defendant did not slow down or stop when approaching the pedestrian crossing when Chang was a clear and obvious danger on the pedestrian crossing;

(c)  The defendant made no attempt to swerve, stop or manoeuvre the Vehicle to avoid the accident;

(d)  The defendant was driving too fast in the circumstances.

Updated Medical Report

3.  Updated Medical Reports of Chang were obtained pursuant to the court’s direction.  According to the report from Queen Elizabeth Hospital dated 17 April 2024 and the report dated 26 January 2024 from Dr Law Wun Tong, Chang is now hemiplegic and has permanent brain damage, with personality changes, language defects, marked overall cognitive impairments and other neurological defects.  He is no longer able to manage or administer his own affairs and requires constant supervision and assistance in his personal self-care and daily activities.

The defendant’s Background

4.  The defendant is 30 years old, single.  He was educated to Form 5 level and worked as a warehouse worker.  He resides with his retired mother and was the breadwinner of the family.

5.  The defendant has 2 criminal convictions, both of which dated back to 2009 and are not similar to the present offence.

6.  The defendant was arrested for this offence on 8 January 2023. He obtained his driver’s licence in 2014.  Between 2015 and 2024, he accumulated 16 traffic convictions, 7 of which occurred after his arrest in the present case, including one conviction for careless driving, 2 convictions for failing to comply with traffic signals, 2 convictions for failing to comply with road markings, one conviction for using vehicle without insurance and one conviction for driving whilst disqualified.

7.  The defendant was released on police bail after his arrest.  He appeared before the Kowloon City Magistrates’ Court on 23 May 2023.  As part of his bail condition, the defendant was required to report to Kwun Tong Police Station every Monday between 2100 hours and 0000 hours.  However, he failed to comply with the reporting conditions on 10 July 2023, 14 August 2023, 24 October 2023, 13 November 2023, 21 November 2023, 18 December 2023, 1 January 2024, 22 January 2024, 12 February 2024, 26 February 2024, 11 March 2024 and 18 March 2024 (a total of 12 times).

Sentencing Principles

8.  Section 36A of the Road Traffic Ordinance, Cap 374 provides that:

“(1)  A person who causes grievous bodily harm to another person by driving a motor vehicle on a road dangerously commits an offence and is liable—

(a)  on conviction on indictment to a fine at level 5 and to imprisonment for 7 years…

(2)  If a court or magistrate convicts a person of an offence under subsection (1), the court or magistrate must order that the person be disqualified in accordance with subsection (3)  or (4)  unless the court or magistrate for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.

(3)  Subject to subsection (4), the period for which the person is to be disqualified is—

(a)  for a first conviction, a period of not less than 2 years…

(4)  If the court or magistrate has ordered the person to attend and complete a driving improvement course under section 72A(1A), the period for which the person is to be disqualified is—

(a)  for a first conviction, a period of not less than 2 years, or until the person has attended and completed the course at his or her own cost, whichever is the later …”

9.  Section 72A of the Road Traffic Ordinance provides:

“(1)  Where a court or magistrate convicts a person of an offence specified in Schedule 11, the court or magistrate may do either or both of the following—

(a)  impose any penalty that may be imposed for the offence;

(b)  order the person to attend and complete a driving improvement course.

(1A)  Subject to subsection (1B), where a court or magistrate convicts a person of an offence under section … 36A, 37… or convicts an applicable person of an offence under section 41(1), the court or magistrate shall order the person to attend and complete a driving improvement course, unless the court or magistrate for special reasons decides not to make such an order.

(1B)  If a person, on being convicted of an offence in any proceedings, is ordered under subsection (1)(b)  or (1A)  to attend and complete a driving improvement course, the person is not to be ordered under that subsection to attend and complete a driving improvement course in respect of any other offence of which he is convicted in those proceedings…

(3)  A person who is ordered to attend and complete a driving improvement course under subsection (1)  or (1A)  must, at the person’s own cost, attend and complete that course in accordance with subsection (3A), (3B)  or (3C)  as may be applicable to the person…

(3C)  The person must attend and complete the driving improvement course within 3 months beginning on the date the person finishes serving the term of imprisonment or detention if the person—

(a)  has been ordered to serve a term of imprisonment or detention, but is not the subject of a disqualification order; or

(b)  has been ordered to serve a term of imprisonment or detention and is also the subject of a disqualification order with a disqualification period that ends—

(i)  before the person finishes serving that term; or

(ii)  within a period of less than 3 months beginning on the date the person finishes serving that term…

(9)  A person who, without reasonable excuse, fails to comply with subsection (3)  commits an offence and is liable on conviction to a fine at level 2 and to imprisonment for 1 month…”

10.  Section 70(2)  of the Road Traffic Ordinance provides that:

“Where a person is convicted of an offence involving obligatory or discretionary disqualification the court or magistrate may, whether or not it makes any other order as to disqualification, and whether or not such person has previously passed the test of competence to drive prescribed under this Ordinance, order him to be disqualified until he has, after the date of the order, passed that test.”

11.  There are no tariffs or sentencing guidelines for the present charge.  In R v Cooksley & Others [2003] All ER 40, the Court of Appeal identified some aggravating and mitigating factors in this type of cases.

12.  The principles set out in R v Cooksley were considered by the Court of Appeal in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660.  In that case, the defendants, public light bus drivers, were convicted after trial of causing death by dangerous driving, contrary to s  36(1)  of the Road Traffic Ordinance (Cap 374)  and causing harm to persons by racing vehicles, contrary to s 33 of the Offences Against the Person Ordinance (Cap 212). The defendants were driving their respective buses on King’s Road, North Point in the early morning.  D1’s vehicle had eight or nine passengers and D2’s vehicle had 14 passengers.  At some stage, they began racing against one another, competing for passengers, including driving through sets of red lights.  At a junction, D1’s bus went through another red light and collided first, with a taxi crossing the junction, and then with D2’s bus, who was overtaking D1’s bus at the time.  D2’s bus overturned.  Two passengers in D2’s bus died and 17 other people were injured.  Both vehicles were travelling at high speed.  The defendants had records for traffic offences: D1 had 10 convictions since 1996; and D2 had 27 convictions, including nine for failing to comply with traffic signals, since November 2002.  The Court of Appeal held:

“10. n sentencing the defendants, the judge adopted a starting point of 2½ years for the dangerous driving charges for both defendants. He found, as we have, great assistance in the English case of R v Cooksley & Others [2003] 3 All ER 40. There, the Court of Appeal laid down sentencing guidelines for the offences of dangerous driving and careless driving causing death, when under the influence of drinks or drugs. While admittedly the sentencing guidelines for the offence of dangerous driving causing death in that case cannot be used in Hong Kong, not least because the maximum sentence in the United Kingdom for the offence was at the time of that case 10 years (now 14 years)  rather than 5, a number of general principles found in the judgment of Lord Woolf CJ can be stated as being equally applicable in Hong Kong. (we also add some observations of our own):

(1)  In most cases of dangerous driving it will be obvious to the offender that his driving was dangerous, and he therefore deserves to be punished accordingly: at p.45J (para.11). This is important to bear in mind because, while it may be true, in some instances not to treat violators of traffic laws as true criminals. Nevertheless, for offences, such as dangerous driving causing death, the offender may not necessarily be seen in quite such a benevolent light.

(2)  Where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased: at p.46A (para.11). The impact on people’s lives ought to be taken into account when sentencing.

(3)  It is important for courts to drive home the message that that 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: at p.46C-E (para.11). 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 motorist, passengers or pedestrians)  are safe, and that their lives are not endangered.

(4)  While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor: - at page 47b (paragraph 14). It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence. In some cases, the fact that only some aggravating factors exist, but not others (such as in the present case), may still bring the case into a very serious category.

(5)  One major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or of his passengers (or, we would add, of pedestrians)  or with a degree of recklessness: - at page 46f-d (paragraph 12).

11. In his Reasons for Sentence, the Judge referred to the headnote in Cooksley which sets out the sentencing guidelines in England for various scenarios involving dangerous driving causing death. Some 16 aggravating factors are enumerated together with some mitigating factors. He then listed out the aggravating and mitigating factors in the present case to arrive at a starting point of 2½ years for each Defendant…”

13. In our judgment, the sentences imposed by the Judge on the Defendants were manifestly inadequate and wrong in principle. We are of the view that for both Defendants, the maximum term of 5 years’ imprisonment should be imposed for the dangerous driving charges and the maximum term of 2 years be imposed for the racing charge… Our reasons for revising the sentences are as follows:

(1)  The conduct of both Defendants as outlined earlier showed an utter and selfish disregard, if not contempt, for the safety and well-being of all who came into contact with their driving: their own passengers, other passengers and other road users. Driving through red lights as if the lights did not exist and as if they were the only users of the road, racing against one another in an attempt to grab passengers, no attempts made to slow down at junctions (in fact quite the opposite)  were all indicative of this...

(2)  The Defendants’ conduct was without doubt reckless and in the words of the Judge “prolonged, persistent and deliberate”. These were not momentary lapses of judgment. The evidence indicated that the 1^st Defendant went through about 10 sets of traffic lights and the 2^nd Defendant, 6 sets (including those at the Healthy Street junction)  without stopping or slowing down.

(3)  The consequences of this driving, which both Defendants must have known was dangerous, were tragic. Two persons lost their lives, many more were injured. One can only shudder when thinking that the consequences could have been far worse. The pedestrian, Mr Tse (PW1), was about to cross the westbound lane of King’s Road to catch a tram and had he done so even though the pedestrian lights were in his favour, he would have sustained extremely serious injuries.

(4)  The Defendants were no doubt in a rush but in doing what they did, they deliberately took the risk not just of being prosecuted for breaching traffic laws, but, far worse, of endangering people’s lives.

(5)  The standard of driving of these Defendants was appalling and in our view totally unacceptable and must rightly be condemned. The safety and well-being of members of the public in Hong Kong are paramount and the public must be adequately protected from the type of driving the two Defendants displayed. It should not be forgotten just how many of the witnesses testified to the very real fear they felt at the time for their lives. In a letter from the 2^nd Defendant addressed to the court yesterday, he denies “absolutely” that he was risking any lives by racing. We disagree: he and the 1^st Defendant were doing exactly that.

(6)  The traffic offence records of the Defendants are also appalling. The 1^st Defendant has a record since 1996 of having been convicted of 10 traffic offences, one of which was committed after the present offence. Four were for careless driving. He has been disqualified twice. The 2^nd Defendant’s record is far worse. Since November 2002, there have been 27 convictions for traffic offences including 9 for failing to comply with traffic signals. Two of the convictions for failing to comply with traffic signals were committed after the present accident when he was driving a bus in Lantau. His record is truly appalling.

(7)  Additionally, it must not be forgotten that the Defendants were each driving vehicles for the carriage of members of the public. Such professional drivers must be acutely aware of the necessity to be safe and not to risk people’s lives and safety. This provides yet another aggravating feature in the present case.

(8)  In our view, what the Defendants did come within the worst category of the type of offences under consideration. In no other case cited to us have the facts been so bad. The utter disregard for the lives and safety of others may well have attracted manslaughter charges where upon conviction, sentences in excess of 5 years might well have been imposed. Be that as it may, although we suppose worse facts than the present case can conceivably exist, this does not mean that maximum sentences should not be imposed. It is to the category or type of seriousness or culpability that the court looks when sentencing.

(9)  In terms of the culpability of both Defendants, they are exactly the same. The periods of disqualification reflect the seriousness of the offences and their poor previous records. It is a disturbing fact that persons such as the 2^nd Defendant in this case find themselves in a position where they are enabled to drive public transport vehicles despite a simply appalling driving record. Before this accident this particular driver had accumulated since November 2002 along over 25 driving violations including a large number of failing to have regard to traffic signals, and indeed after this accident, as we have earlier mentioned, was still driving public buses and committing 2 further offences of failing to comply with traffic signs…

14. In our view the Judge erred by failing to consider the gravity of the overall circumstances of the offences. In some parts of his Reasons for Sentence, he seemed to regard as important the fact that only some of the aggravating features mentioned in Cooksley, but not others, existed and this perhaps might explain his low starting points. However, once account is taken overall of those aggravating features and other circumstances we have earlier identified, it is clear that the present offences are in the most serious category and that maximum sentences ought to be imposed. The Judge was also wrong to reduce the 1^st Defendant’s sentence by 6 months on account of his remorse and good character. In the circumstances of the present case, these factors are of little or no weight…

13.  In Secretary for Justice v Fong Chai Man [2008] 3 HKLRD 493, the Court of Appeal set out the list of aggravating and mitigating factors mentioned in R v Cooksley:

“Highly culpable standard of driving at time of offence

(a)  the consumption of drugs (including legal medication, known to cause drowsiness)  or of alcohol, ranging from a couple of drinks to a ‘motorised pub crawl’;

(b)  greatly excessive speed; racing; competitive, driving against another vehicle; ‘showing off’;

(c)  disregard of warnings from fellow passengers;

(d)  a prolonged, persistent and deliberate course of very bad driving;

(e)  aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking);

(f)  Driving while the driver’s attention is avoidably distracted, eg by reading or the use of the mobile phone (especially if hand-held);

(g)  driving when knowingly suffering from a medical condition which significantly impaired the offender’s driving skills;

(h)  Driving when knowingly deprived of adequate sleep or rest;

(i)  Driving a poorly maintained or dangerously loaded vehicle, especially when this has been motivated by commercial concerns.

Driving habitually below acceptable standard

(j)  other offences committed at the same time, such as driving without ever having held a license; driving while disqualified; driving without insurance; driving as a learner without supervision; taking a vehicle without consent; driving a stolen vehicle;

(k)  previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving;

Outcome of offence

(l)  more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable;

(m)  serious injury to one or more victims, in addition to the death(s);

Irresponsible behaviour at time of offence

(n)  behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape;

(o)  causing death in the course of dangerous driving in an attempt to avoid detection or apprehension;

(p)  offence committed while the offender was on bail.

Mitigating Factors

(a)  a good driving record;

(b)  the absence of previous convictions;

(c)  a timely plea of guilty;

(d)  genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);

(e)  the offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence); and

(f)  the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.

14.  In Secretary for Justice v Chu Wing Yin Christine CAAR 5/2018 [2019] HKCA 1459, the Court of Appeal stated:

“53. From this survey of relevant authorities in Hong Kong, England and Wales and Australia, certain fundamentals may be stated when a judge approaches his task of sentencing for causing grievous bodily harm by dangerous driving. First, the dominant factor to be considered in sentencing for this offence is the defendant’s culpability. This will involve two related assessments. The first is the objective dangerousness of the defendant’s driving; the second is his moral culpability.

54. To illustrate the distinction, driving through a red traffic light in a built up area would go to the objective dangerousness of the driver’s conduct: driving in that way so as to jump a red traffic light would go to his moral culpability. Speeding or driving aggressively would go to the objective dangerousness of the driver’s conduct: doing so in order to race another vehicle, or out of “road rage”, would go to his moral culpability. Driving erratically would go to the objective dangerousness of the driver’s conduct: sending or reading a text message on a mobile telephone whilst doing so would go to his moral culpability.

55. There will of course, be an overlap or inter-twining of these two assessments, one of which focusses more on what the driver did, the other on why he did it. Both, however, are concerned with addressing the dominant question of culpability.

56. Secondly, having assessed culpability, a judge should then consider the harm and impact caused to the victim(s). Really serious injury will already have been caused and this will be an important factor in the sentencing exercise[53]. As with the varying level of culpability attending a defendant’s driving, the degree of harm and impact on the victim(s)  will also vary; from a laceration to the fracture of a limb to brain damage to lifetime incapacity. There will also be a difference in the harm and impact caused by a vehicle hitting one pedestrian and a vehicle ploughing into a row or group of pedestrians.

57. In assessing the issues of culpability and harm, a sentencing judge will have regard to the sort of aggravating factors described in the authorities, mindful that they do not represent an exhaustive list, and conscious that the value to be placed on any particular factor will vary according to the circumstances of each case.

58. Thirdly, a judge will proceed on the basis that the normal sentence for an offence of causing grievous bodily harm by dangerous driving is one of immediate imprisonment. The length of such sentence will be determined by his assessment of the first two factors, bearing in mind that the maximum sentence for the offence upon indictment is a fine at level 5 and imprisonment for 7 years. We consider that other sentencing options would only be available in exceptional cases.”

Discussions

15.  In paragraphs 3 to 7 of his submissions, counsel stated:

“3. As regards the objective dangerousness, the Defendant has accepted the latest version of the Summary of Facts and highlights the following, to establish that he had not committed any other offences under the Road Traffic Ordinance, Cap 374. Had this not been the case it would have made this manoeuvre or act of dangerous driving far more culpable.

(1)  Paragraph 1 - “The speed limit of 50 km/hr was imposed”; and

(2)  Paragraph 7 - the Forensic Scientist Report stated that “prior to the collision…V was travelling at the speed of 56 ±6 km…along Reclamation Street” and “decelerated to 46 ±5 km/h when he was making a right turn”.

4. In the same paragraph 7, the Forensic Scientists Report asserted that had the Defendant been driving at 46 km/h prior to the collision and had he noticed the jaywalker, “he might” have been able to stop in time. The possibility of stopping by driving 4 kms below the speed limit cannot be a factor irrelevant to his driving manner. If it does, it is not something far below what is expected of a reasonable driver, it would by itself, because he had not exceeded the speed limit merely be careless and not reckless.

5. It is stressed that a Criminal Court must give the benefit to the Defendant and accept he had approached the turn at 50 km/h and then decelerated to 41 km/h. In other words, he was, at all material times, travelling within the speed limit.

6. In HKSAR v NG Siu-bun [2020] 1 HKLRD 553 the Court of Appeal quashed a conviction for “Causing Death by Dangerous Driving” and substituted it with “Careless Driving” for this very reason.

(1)  At paragraph 21 of the Judgment it was said

“Nor was there any evidence that the applicant was speeding above the limit of 50 kph as he negotiated the turn into Tung Chau Street. Although the prosecution case had initially been put on the basis that the applicant was “turning in wet/rainy conditions at around 50 kph which was touching the speed limit”.

(2)  Then at paragraph 27:

“And while a green light in a driver’s favour does not provide a licence for him to drive through pedestrians whom he can see are jaywalking, he is entitled to assume that others, both motorists and pedestrians, are obeying traffic signals. As we have said, and we must stress, the applicant did not infringe any traffic regulation or provision in the RTO”.

7. It is therefore submitted that the speed is not a relevant factor to the manner of the driving. The “catchall phrase” at paragraph 9 of the Summary of Facts confirms the fact that the Defendant had driven dangerously but there are no specifics. The sub-standard driving appears to be limited to the fact he had hit a jaywalker near or on a pedestrian crossing. Even the description of the car camera (at paragraph 5 of the Summary of Facts - time 18:58:16)  which states, “There were jaywalkers and V did not appear to have slowed down” contradicts the findings of the Forensic Scientists Report at the paragraph 7, where the expert confirmed that there was deceleration.”

16.  The above submissions were based on the original Summary of Facts dated 26 June 2023. Since Counsel appeared to be suggesting that there was insufficient evidence to support the Charge, the court asked both parties for consideration of (1)  the prosecution’s case in respect of the alleged dangerous driving and (2)  the basis of the defendant’s plea.

17.  The Prosecution admitted that the Summary of Facts did not properly reflect what was shown in the car camera footage.  The defence admitted that the defendant was driving too fast in the circumstances.

18.  The car camera footage was played in court.  The contents of the car camera footage were admitted by the defendant.  The parties agreed to amendments to the Summary of Facts before a plea was taken (See paragraph 2(10)  above).

19.  By reason of the above, whilst the speed of the defendant’s car was not above the speed limit, it was one of the factors contributing to his dangerous driving.

20.  Counsel argued that it was not clear from the Summary of Facts where Chang was hit at the junction.  According to the defendant, Chang rushed out when the Vehicle was approaching the pedestrian crossing at the junction, and there was insufficient time for him to stop (See paragraph 4 of the Amended Summary of Facts).  Counsel stated that this was inconsistent with the Prosecution’s description of the car camera footage.

21.  The Prosecution was merely repeating what the defendant said under caution.  The defendant has now admitted that Chang was already well exposed near the 2^nd and 3^rd lane of Mongkok Road when the Vehicle turned into Mongkok Road.  This admission is consistent with the car camera footage.  What the defendant said under caution was clearly untrue.

22.  Counsel further submitted that the defendant’s moral culpability was extremely low. Unlike SJ v Chu Wing Yin, Christine (supra)  and SJ v Lam Siu Tong [2009] 5 HKLRD 601, there was no evidence that the defendant had crossed the Junction against the red light, nor was there any evidence that he may not have seen the red light controlling his approach.  Counsel pointed out that the objective culpability is lacking in the present case and that on this issue alone, the defendant’s culpability is substantially less than the defendants in the two cases mentioned above.

23.  In SJ v Lam Siu Tong (supra), the then CJHC stated at paragraph 19:

“At the outset of this judgment, we highlighted one feature common to both Reviews, namely, that the accidents took place at pedestrian crossings. It hardly needs reminding that motorists are required to exercise the utmost care when approaching pedestrian crossings, by reason of the obvious: it is highly likely that people will be crossing the road there, whatever the time of day or night. Accordingly, if motorists approach pedestrian crossings at high speed, or disregard traffic lights, there is a high risk that an accident will occur. And where a collision takes place, fatalities are common as we have seen in the Reviews before us.”

24.  It is clear that the comments in SJ v Lam Siu Tong were not restricted to jumping red lights.  As was explained in HKSAR v Ng Siu Bun (supra), a green light in the driver’s favour does not provide a licence for him to drive through pedestrians whom he can see are jaywalking.  It is clear from the Amended Summary of Facts admitted by the defendant in the present case that he was in the habit of disregarding pedestrian crossings even when there were clearly jaywalkers on the road.

25.  I do not agree that the defendant’s culpability in the present case is less than that in Chu Wing Yin Christine (supra).  The facts of the two cases are serious in different ways.  In Chu Wing Yin, Christine, the defendant failed to register that the lights were red against her.  It was a single isolated incident.  In the present case, the defendant failed to slow down at all as he approached 2 pedestrian crossings.  In Chu Wing Yin, Christine, the defendant failed to notice the pedestrians using the crossing until it was too late.  In the present case, the defendant failed to slow down even though he saw the jaywalkers as he turned into Mongkok Road.  In Chu Wing Yin Christine, the court accepted that the accident was caused by the defendant’s lapse of attention (paragraph 40).  In the present case, because the defendant was aware of the jaywalkers as he turned into Mongkok Road, his behaviour was completely reckless.  In Chu Wing Yin, Christine, 3 pedestrians were injured.  Only one pedestrian was injured in the present case.  However, the site of the accident was a busy junction.  The defendant was only lucky that no further pedestrians were injured by his driving.  Further, he was disqualified under the Driving-offence Points Ordinance on 11 December 2023.

26.  Counsel further submitted that there are no identifiable aggravating factors in the present case.  I disagree.  The accident occurred at or near a pedestrian crossing.  The defendant has previous convictions for motoring offences, particularly offences which involve bad driving.  From his driving record, he appears to have a habit of speeding and ignoring traffic signs.  The Junction was in one of the busiest areas in Hong Kong, especially in the evening.  The defendant failed to slow down when he was clearly aware of jaywalkers.

27.  Chang’s injuries were extremely serious.  He is now hemiplegic and has permanent cognitive impairment.

28.  By reason of all the above mentioned matters, in my judgment, the appropriate starting point is one of 24 months’ imprisonment.

Mitigating factors

29.  The defendants has pleaded guilty at the first opportunity and is entitled to a full one-third discount.  The sentence is reduced to 16 months’ imprisonment.

30.  Apart from his guilty plea, there are no other mitigating factors.  I sentence the defendant to 16 months’ imprisonment.

Consequential Orders

31.  This is the defendant’s first conviction of any form of dangerous driving.  There is no dispute that disqualification for at least 2 years is mandatory unless there are special reasons.  Counsel conceded that there are no special reasons.  I order that the defendant be disqualified from holding or obtaining any form of driver’s licence for 2 years.  Such order is not to start until the defendant finishes serving his term of imprisonment pursuant to section 69A(2).  1 year of such disqualification should be consecutive to the present disqualification order in WKCC 1501/2024.

32.  Counsel submitted that the defendant realises that there is a possibility that he is ordered to attend a driving improvement course and he has nothing to say (See paragraph 28 of the Submissions).  In fact, such an order is mandatory under section 72A(1A)  of the Road Traffic Ordinance.

33.  The defendant has already attended a driving improvement course on 2 previous occasions.  On 23 November 2015, he was ordered by the court to attend and complete a driving improvement course.  He failed to comply with that order.  He only attended and completed the driving improvement course on 17 February 2017.  In November 2022, the defendant was disqualified under the Driving-offence Points Ordinance.  Despite that, he continued to drive and was found speeding on 6 December 2022.  Thereafter, he continued to ignore traffic signals and was convicted of 3 offences between February and May 2023.  He attended and completed another driving improvement course on 30 May 2023.  On 24 December 2023 and 19 April 2024 he went on to commit further 6 offences including 2 counts of driving without third party insurance, 2 counts of driving whilst disqualified, one count of taking conveyance without authority and one count of driving an unlicenced vehicle.  He has no regard for traffic regulations and law and order.  However, the 2 driving improvement courses appear to have had no effect on him. He failed to comply with traffic signals on 4 August 2023 and drove carelessly on 8 March 2024.

34.  The court invited Counsel to address the question of a re-test in the light of the defendant’s behaviour.  After the hearing, Counsel provided the court with the Magistracy appeal decision in HKSAR v Kwok Ching Yeung [2021] HKCFI 3457.  In that case, the appellant (who had a clear criminal and driving record)  pleaded guilty to a summons of “speeding” contrary to section 41(1)  of the Road Traffic Ordinance.  The Special Magistrate stated that the appellant had exceeded the speed limit by no less than 52 km/h and his actual speed was no less than 122 km/h, which was far in excess of the speed limit allowed in any road in Hong Kong.  He found that the appellant had either failed to abide by the law and had low safety awareness, or he had poor driving skills.  He ordered a fine of $4,000, disqualification for 6 months, attendance and completion of a driving improvement course and a re-test.  There was no dispute that the order to retake the driving test:

(1)  should not be punitive; and

(2)  should be based on certain reasons which cast doubt on the driving skills of the convicted person, such as old age or infirmity, or reason of public benefit, or the facts of the case show that he was driving inappropriately.

If there was nothing wrong with his driving skills, there was no basis for making the order to retake the driving test.

35.  On appeal, the learned Judge found that there were no factors which can be indicative of the appellant’s poor driving skills.  The order to retake the driving test was set aside.

36.  In the present case, the defendant’s driving record has demonstrated that he has a habit of ignoring speed limits and traffic signals.  He has also ignored court orders (including bail conditions, order for him to attend and complete driving improvement course and orders for disqualification).  He has continued with this behaviour even after the serious accident in the present case.  As was explained above, even in the present case, the defendant’s failure to consider the safety of other road users was not an isolated incident. He failed to slow down at the pedestrian crossing on Reclamation Street even though there were jaywalkers on the road.  It is obvious that the defendant has no regard for road safety.  And he is persistent in his behaviour throughout the time since he obtained a driving licence.  He is a menace on the road unless and until he learns the importance of road safety.  In the interests of the safety of the general public, the only appropriate order to make in this case is for the defendant to re-take the driver’s competence test before he is allowed to drive again.  Accordingly, instead of ordering the attendance and completion of a driving improvement course, I order that the defendant shall be disqualified from driving any class of vehicle unless and until he has passed the test of competence after the expiry of the disqualification period.

Totality

37.  The defendant was sentenced to 4 months’ imprisonment for the West Kowloon Magistrates’ case on 19 April 2024.  These are two different cases.  Considering totality principle, I order 2 months of the present case to be concurrent with the West Kowloon Magistrates’ case, i.e. 14 months to run consecutive to the West Kowloon Magistrates’ case.