HKSAR v. NG SHEUNG YEE

DCCC 328/2020

[2021] HKDC 611

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 328 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance[1].

2.  On the morning of 2 November 2019 the defendant, driving private car GH 9701, failed to comply with the red traffic light at a pedestrian crossing outside Savannah College of Art and Design on Tai Po Road and knocked down Mr Tam who was crossing the road when the pedestrian light was green. 

3.  Full particulars of the offence are set out in the summary of facts admitted by the defendant on 20 April 2021. 

4.  In summary the section of Tai Po Road is a two-lane carriageway with a speed limit of 50km/h.  At the material time the weather was fine, the lighting was good and the road surface was dry and in good repair.  The traffic lights at the pedestrian crossing were functioning properly at the time. 

5.  At around 8:21 a.m. on 2 November 2019 Mr Chan, the driver of light goods vehicle SX 9182, was travelling in the left lane of Tai Po Road, southbound (“the first lane”).  As Mr Chan approached the pedestrian crossing outside Savannah College of Art and Design the traffic lights for vehicles turned from green to amber. Mr Chan slowed down and stopped in front of the horizontal line at the traffic lights by which time the traffic lights had turned red. 

6.  While waiting at the traffic lights Mr Chan noticed from his side mirrors private car GH 9701 travelling along the second lane at a speed of around 50km/h.  Notwithstanding the traffic light was red GH 9701 did not reduce speed on approaching the pedestrian crossing.

7.  GH 9701 failed to comply with the red traffic light signal and hit Mr Tam who was crossing the road when the pedestrian light was green.  Mr Tam was thrown into the air and landed on the first lane.  GH 9701 came to a halt on the second lane.  After the accident Mr Chan noticed that the traffic lights were still red against vehicular traffic[2].

8.  The police were called and very shortly afterwards police officers and an ambulance arrived.  Mr Tam was taken to hospital having sustained a fracture of the right ankle. 

9.  A breath test was conducted on the defendant which recorded a negative result for alcohol.  Subsequent examination of GH 9701 revealed no mechanical defects. 

Mitigation

10.  In passing sentence, I have carefully considered the oral and written submissions of Mr Chan SC, including that the defendant has been a practising surgeon for the past fifty-two years and has devoted his life to serving his patients and contributing to the welfare of the wider general public[3]. 

11.  I take into account the defendant, who is 76, is a person of good character and that the traffic record shows no traffic contraventions, the defendant having held a driving licence since 1967[4].

12.  I take into account the defendant is a person of positive good character who has contributed to the field of medicine, including training medical students; volunteering to help the Hospital Authority during SARS and supporting the Government’s health initiatives, most recently Colorectal Cancer Screening[5].

13.  I have read the defendant’s mitigation letter in which he expresses his deep remorse for what happened.  The defendant feels extremely guilty about hitting Mr Tam having himself witnessed first–hand how bad driving can affect other road users, his wife having been knocked down by a drunk driver in 2002 from which she suffered permanent disability[6].

14.  I have also read the letters written by the defendant’s daughters, friends, patients and nurses who have worked for the defendant.  The defendant is variously described as a loving, faithful and hardworking man; a kind, competent and careful surgeon; an optimistic, frank and honest person with integrity; a benevolent and kind person; a caring person who understands the needs of his patients and a responsible and caring person to his patients, his family and his employees[7].

15.  I take into account the deterioration in health of the defendant’s wife who, apart from being unable to walk as a result of the traffic accident in 2002, has developed Parkinson’s disease, dementia and chronic constipation which requires daily assistance[8].

16.  In his letter to court the defendant states that after he hit Mr Tam he immediately stopped and tended to Mr Tam; he was confused about how he could have hit Mr Tam because he recalled at the time the traffic light was green and that he told the same to the police and that he did not think he had driven wrongly.

17.  After reading the case papers the defendant was shocked to learn the traffic lights had already turned red before he arrived at the crossing; shocked to learn he was the one at fault and confused about how he could not recall seeing the red light.  Suspecting there might be some neurological issues the defendant consulted neurologist Dr Kan[9].

18.  The defence have placed before the court the medical reports of Dr Kan and submit that it was reasonably possible that the defendant suffered from a transient hypotensive episode (or a brief pre-syncope attack arising from hypotension) which was then unknown to the defendant, but had impaired his ability to drive carefully and alertly[10].

19.  As indicated in court in the absence of evidence being called I do not accept that the defendant had or may have had a pre-syncope attack.  Mr Chan having taking instructions informs the court that the defendant does not wish to rely on the medical reports.

20.  Mr Chan invites the court to proceed on the basis that the defendant failed to keep a proper lookout and did not deliberately drive through the red light[11].

Discussion

21.  Causing grievous bodily harm by dangerous driving is a serious offence for which the maximum penalty is 7 years’ imprisonment.

22.  In R v Boswell 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[12].  These factors were revised in R v Cooksley[13] and have been adopted in Hong Kong. 

23.  In Secretary for Justice v Chu Wing Yin Christine, a case of causing grievous bodily harm by dangerous driving,the court listed thirteen aggravating factors, including the fact that the offence took place at a pedestrian crossing[14].

24.  In R v Cooksley as applied in the Secretary for Justice v Poon Wing Kay & another the court emphasised that a sentencing court must look at the overall circumstances and the overall culpability of the offender[15].  

25.  In Secretary for Justice v Chu Wing Ying Christine the Court of Appeal stated that the dominant factor to be considered in sentencing is the defendant’s culpability, which involves two related assessments, the objective dangerousness of the defendant’s driving and the moral culpability of the defendant and having assessed culpability the court should consider the harm and impact caused to the victim, which involved an assessment of the nature and degree of the injuries sustained[16].

26.  In Secretary for Justice v Lau Sin Ting 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[17].

27.  In R v Cooksley four categories of culpability were adopted: where there are no aggravating circumstances; intermediate culpability; higher culpability; and most serious culpability, which categories have been adopted in Hong Kong[18].

Failure to comply with the red traffic light signal

28.  In Secretary for Justice v Lam Siu Tong, a case of dangerous driving causing death, the Court of Appeal held that the disregarding of traffic lights when approaching a pedestrian crossing would be regarded as a serious aggravating feature, the degree of seriousness depending on the precise circumstances and that a conscious disregard for traffic lights would likely put the case into the most serious category[19].

29.  Mr Chan invites the court to note that not all cases of failing to stop at a red traffic light involving a pedestrian crossing, even where a pedestrian is hit, will be considered objectively dangerous and refers the court to various decisions where a finding of careless driving was made[20].

30.  This Mr Chan submits is not to suggest that the defendant’s driving was not dangerous but to illustrate that there may be a small degree of overlap between the upper end of careless driving and the lower end of dangerous driving.

31.  The cases referred to by Mr Chan are factually very different to the facts of the present case for example in one case the pedestrian crossed the road when the light for pedestrians was red.  I do not find these cases very helpful.

32.  There have been a number of cases heard by the Court of Appeal involving pedestrians knocked down on pedestrian crossings: HKSAR v Lui Chung Tak[21], HKSAR v Lee Yau Wing[22], Secretary for Justice v Chu Wing Ying Christine[23] and HKSAR v Kwan Wan Ki[24].

33.  Clearly each case is to be decided on its own facts and circumstances.  This is perhaps best highlighted by HKSAR v Lee Yau Wing a case where the driving exhibited a conscious disregard for the traffic lights and for those pedestrians who might be using the crossing.  The Court of Appeal in describing the circumstances as “very unusual”held the sentencing judge was right to adopt a starting point of 15 months’ imprisonment, which is less than the sentence in both HKSAR v Lui Chung Tak and Secretary for Justice v Chu Wing Ying Christine where the Court of Appeal accepted the driver did not deliberately jump the red light[25]. 

Injuries

34.  Mr Tam sustained a fracture of the right ankle.  Fracture reduction and fixation of ankle fracture was performed on 11 November 2019.  Postoperatively Mr Tam was given an ankle foot orthosis.  Mr Tam was discharged from hospital on 16 November 2019.  Mr Tam was given sick leave for 189 days.

35.  Medical reports have been submitted to court detailing the injuries and follow up treatment[26]. Mr Chau confirms that Mr Tam, who is a student, has made a full recovery although he still experiences pain after exercising for ten minutes.  

36.  In HKSAR v Lui Chung Takthe Court of Appeal said 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[27].  In Secretary for Justice v Chu Wing Ying Christine the court said that really serious injury which impacts on the victim will be an important factor in the sentencing exercise[28].

37.  Whilst the impact on people’s lives is to be taken into account when sentencing the Court of Appeal in Secretary for Justice v Poon Wing Kay said that a sentencing court must look at the overall circumstances and the overall culpability of the offender and that in assessing the overall seriousness culpability is often the dominant factor[29].

Sentence

38.  In Secretary for Justice v Poon Wing Kay the Court of Appeal stated[30]: -

“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.”

39.  With regard to the objective dangerousness of the defendant’s driving I take into account the section of Tai Po Road is long and affords the driver an unobstructed view of the traffic lights and the pedestrian crossing.   This is shown in photograph 2 of the photographs submitted to court.  The location is outside the former North Kowloon Magistracy, a location which I am familiar with having worked in North Kowloon Magistracy, albeit a long time ago, a fact made known to the parties.

40.  If the defendant was paying attention he could not have failed to notice the crossing and that the traffic light changed from green to amber and then to red. Further, the defendant did not slow down on his approach to the pedestrian crossing. 

41.  I am however prepared to accept that the defendant, who has driven for over fifty years without contravening any traffic law and was familiar with the road, did not deliberately drive through the red light and that due to inattention failed to realise the traffic lights had changed to red.  

42.  I accept that apart from the offence taking place on a pedestrian crossing there are no other aggravating factors.  I am satisfied the defendant’s driving falls within the intermediate category of culpability. 

43.  Whilst Mr Tam still feels pain when exercising, I accept the injuries cannot be described as very serious.  In HKSAR v Kwan Wan Ki the injury was also a fracture of the ankle which required emergency closed reduction and external fixation.  The court described the injuries as much less serious than those of the victims in Secretary for Justice v Chu Wing Ying Christine where one of three victims was extremely seriously injured.  

44.  Taking into account all the circumstances, I am satisfied that the proper starting point after trial is 12 months’ imprisonment.  

Timely plea of guilty

45.  Mr Chan explains the late plea arises from previous legal advice that on an objective analysis it was arguable the defendant’s driving was not dangerous.  Mr Chan says this is because the line between careless driving and dangerous driving, being a completely objective analysis, is thin and that the consideration of whether the defendant had a defence in law was a difficult decision to make, case law being inconsistent in this area[31].

46.  In HKSAR v Ngo Van Nam the Court of Appeal stated that subject to the overriding discretion of the judge in sentencing, a defendant who gives the Court or the prosecution an indication of a plea of guilty after trial dates are fixed and before the first day of trial is to be afforded a discount between 25% and 20%.  In determining the appropriate discount the court further stated that the judge will have regard to the time at which the indication to plead guilty was given and all other relevant circumstances[32].

47.  Mr Chan accepting that a plea of guilty on the first day of trial attracts a discount of 20% submits that the basis of a reduced discount is largely focused on a lack of remorse.  

48.  Mr Chan invites the court to accept that the late plea is not an indication of the defendant’s lack of remorse[33].  In oral submissions Mr Chan asks the court to exercise the discretion in favour of the defendant. 

49.  I reject the submission that the basis of a reduced discount is a lack of remorse.  In my view the reduced discount reflects the time when the plea was entered and that remorse is subsumed in that discount.  As the court stated in HKSAR v Ngo Van Nam the utilitarian value of a plea of guilty is greater the earlier the plea of guilty is intimated or tendered[34].  

50.  Whilst I have no doubt the defendant is genuinely remorseful, in particular considering his wife was seriously injured as a result of a drink driver, the fact remains the plea tendered is a late plea.

51.  On 6 October 2020 after an adjournment of almost four months to obtain legal advice, including from Senior Counsel (not Mr Chan SC), the defendant indicated a plea of not guilty to the charge.  Trial dates were then fixed.  The prosecution was required to prepare the case for trial and obtain their own expert report. 

52.  Mr Chau confirms that he was first notified that the defendant would plead guilty on the weekend prior to trial.  As a result, no witnesses were required to attend court. 

53.  Taking into account the indication was first given at the weekend prior to trial, just over six months after the trial dates were fixed and that no witnesses were required to attend court, I am satisfied a discount of 3 months’ imprisonment is appropriate which reduces the sentence to 9 months’ imprisonment.

Suspended sentence

54.  In Secretary for Justice v Chu Wing Yin Christine the Court of Appeal stated that 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 and that other sentencing options would only be available in exceptional cases dependent upon the circumstances of the offence and of the offender[35].  

55.  Although it has been said that not much assistance will be derived from an examination and comparison of the facts of other cases[36], I note that in the cases to which I have referred earlier involving pedestrians knocked down on pedestrian crossings, the Court of Appeal held that immediate imprisonment ranging from 6 months to 20 months’ imprisonment was appropriate.

56.  Mr Chan submits that the defendant did not deliberately run the red light and invites the court to consider the defendant’s age, impeccable traffic record, contribution to society and that the defendant has to look after his elderly wife and find that this is one of those exceptional cases where the circumstances of the offence and the offender justifies consideration of other sentencing options aside from one of immediate imprisonment and that a suspended sentence is justified[37].

57.  In support of the submission that the circumstances of the offence and the offender justifies a suspended sentence Mr Chan refers the court to the Reasons for Sentence in HKSAR v Lee Yeung Chi, Richard[38] and HKSAR v Mok Wong Kin Ming[39].

58.  Mr Chan, accepting that the sentences in these cases may well be considered to be lenient, submits they show that in the right circumstances, it is open to the court to achieve an appropriate balance between the need for deterrence and compassion to an individual defendant’s circumstances without the need to impose an immediate custodial sentence[40].

59.  As another example of where a non-custodial sentence was imposed Mr Chan also refers to HKSAR v Cheung Yuk Tong, which was an appeal against conviction only for the offence of dangerous driving[41].  I note this is a case which was heard prior to the enactment of the offence of causing grievous bodily harm by dangerous driving.  I do not find this case of assistance. 

60.  In his supplemental written submission Mr Chan refers the court to Secretary for Justice v Wade, Ian Francis where the Secretary for Justice appealed the sentence of a fine of $30,000 imposed for dangerous driving[42].  The respondent drove whilst the alcohol level in his body was 3.36 times the legal limit during which time he was involved in collisions with four other vehicles.  The vehicles were only slightly damaged and nobody was injured.

61.  The Court of Appeal describing the driving as a persistent, prolonged course of very bad driving, which evinced a reckless disregard for the safety of other road users, held the fact that the respondent drove his motor vehicle whilst the alcohol level in his body was 3.36 times the legal limit, the appropriate starting point was 9 months’ imprisonment[43].

62.  The court then went on to consider whether or not it was appropriate to suspend the sentence.  Notwithstanding the aggravating features of the driving, having regard to the low speed at which the respondent 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 were satisfied that it was appropriate to suspend the sentence[44]. 

63.  Mr Chan next refers the court to the Reasons for Sentence in HKSAR v Yeung Tak Man as an example of the court following the guidance given in Secretary for Justice v Wade, Ian Francis and imposing a suspended sentence for dangerous driving[45]. 

64.  After careful consideration of all the circumstances of the offence and the defendant and bearing in mind the need for individual justice, I am persuaded that a suspended sentence is appropriate.  The defendant is convicted and sentenced to 9 months’ imprisonment suspended for 12 months.

65.  If the defendant commits a further offence punishable by imprisonment during the next 12 months, the suspension will be lifted and the defendant ordered to serve 9 months in addition to any sentence imposed for the new offence. 

Disqualification

66.  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. 

67.  The defendant says he is determined not to drive again and asks the court to make an order that he be disqualified from driving for the rest of his life[46].   The court does not have the power to disqualify for life.  Only on conviction for causing death by dangerous driving or driving a motor vehicle without proper control under influence of a specified illicit drug may a court order the person to be disqualified for life[47].

68.  Taking into account the circumstances of the driving and the defendant’s good traffic record, I am satisfied that the minimum period of 2 years’disqualification is appropriate.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 2 years.

Re-testing

69.  Section 70 of the Road Traffic Ordinance provides that a court may order that a person be disqualified until he has passed the test of competence to drive.  Re-testing is designed to protect road users from an offender who has shown himself a real risk on the roads[48].

70.  In view of the defendant’s good traffic record I was initially of the view that a re-test order was not appropriate.  Having given the matter further consideration, in particular the defendant asking to be disqualified for life which indicates a lack of confidence that he can drive safely, I am of the view if the defendant wishes to drive again he must first pass a test of competence to drive.

71.  I order that the defendant cannot drive after the disqualification period until he has passed a test of competence to drive.  Having made an order of re-testing I do not order the defendant to attend and complete a driving improvement course pursuant to section 72A (1A) of the Road Traffic Ordinance.