HKSAR v. CHUNG SAI KWONG, RICKY

DCCC 671/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 671 OF 2015

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REASONS FOR SENTENCE

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INTRODUCTION

1.  On 12 November 2015, the defendant pleaded guilty to one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374 (“the Ordinance”). 

FACTS OF THE CASE

2.  A triangular safety island sits in the middle of the Y-junction between Tsuen Nam Road and Tai Wai Road in Tai Wai, Shatin, New Territories.  The stretch of Tsuen Nam Road that leads up to the Y-junction is a one-way, two-lane carriageway heading towards a generally south-westerly direction.  On reaching the Y-junction, the off-lane of Tsuen Nam Road continues straight ahead in its south-westerly course, but its near-lane describes an almost ninety-degree, right turn along one side of the safety island, changing the direction of the near-lane to north-west. Right in the middle of the turn is a pedestrian crossing (“the crossing”), which is controlled by a set of traffic lights.  The speed limit in that segment of Tsuen Nam Road is 50 km/hour.

3.  The weather on the morning of 4 February 2015 was fine, the road surface at the Y-junction was dry.  That morning Mr Cheung Yuk Man, 66, waited at the pavement of the near-lane of Tsuen Nam Road, intending to walk to the safety island along the crossing.  When the traffic light governing the pedestrians turned green in his favour, he stepped onto the carriageway (but outside the crossing) and was hit by the taxi driven by the defendant.  Upon impact, Mr Cheung was thrown forward.  (The sketch and the photographs supplied to the court by the prosecution showed, first, the position at which the defendant’s taxi stopped, ie, its rear being about half a car-length from the crossing; and secondly, a puddle of blood on the road surface about another half a car-length in front of the defendant’s taxi.)  Two pedestrians waiting to cross the road at the safety island estimated that the defendant’s taxi had proceeded at about 30 and 40 km/hour; they confirmed that when Mr Cheung started to cross the road, the traffic light had already turned green in the pedestrians’ favour.  The police arrived shortly and conducted a test on the defendant which showed no alcohol in his breath.

4.  Mr Cheung was taken to Prince of Wales Hospital and was found to have sustained the following injuries: fractures on the right frontal skull and orbit, right frontal contusion, subarachnoid and subdural haemorrhage, and non-displaced left superior pubic ramus and ishial ramus fracture.  He was admitted to the Intensive Care Unit that day where he stayed until his transfer to the Neurosurgical High-dependency Unit on 20 February 2015.  Two days later, on 22 February 2015, he was readmitted to the Intensive Care Unit due to a chest infection.  On 4 March 2015, he was sent again to the Neurosurgical High-dependency Unit for further management.  On 15 April 2015, he was transferred to Shatin Hospital for rehabilitation.  As at 30 May 2015, his recovery was good and he could move about unaided.

MITIGATION

5.  In his plea in mitigation, Mr Ronny Leung appearing on the defendant’s behalf puts forward the following matters for the court’s consideration.  The defendant is 49 years old.  Except a traffic record entered against him on 23 October 2008 for careless driving for which he was fined $1,500, the defendant has had a clear criminal record prior to his current conviction.  Educated to Form Four level, he started his work life as an apprentice in a kitchen but has for the last 28 years since 1987 been a taxi driver, currently making $13,000 to $14,000 a month.  He is married and has a son now aged 18, a Form Six student.  His wife works part-time at a laundry, making $3,000 a month.  His father and mother are both aged persons: his father (who is in poor health) lives at a home for the elderly; his mother has limited mobility due to a leg problem.  In order to support the family, the defendant works 11 hours a day and hardly takes any holidays.  By their letters to the court, the defendant’s family members show their full support to him.  In the eye of his family, the defendant has a gentle and caring deposition, contributing monthly towards the expenses of his in-laws.

6.  Mr Leung points out that fortunately, Mr Cheung has been discharged from hospital with good recovery and prognosis.  He submits that the defendant was not, at the time of the accident, under the influence of alcohol or dangerous drugs, nor was he speeding.  Stressing the long driving experience of the defendant and his good traffic records for the last 28 years, Mr Leung asks the court to consider the defendant’s driving manner that caused the accident as “out of character”.

7.  Mr Leung refers to the case of HKSAR v Lee Fai (transl)[1], a case in which the defendant disobeyed the traffic control lights and made a right turn into the path of an oncoming motorcycle, causing the motorcycle to collide with his vehicle.  The driver of the motorcycle suffered a deep laceration in the scalp, distortion in the right arm, and redness in the chest wall, and was admitted to the Intensive Care Unit of a hospital for treatment. In that case, the Court of First Instance agreed with the trial magistrate’s ruling that there had been no aggravating circumstances.  Having regard to the defendant’s personal background and lack of any traffic records, the Court of First Instance quashed a 6-month term of imprisonment and substituted it with a 120-hour Community Service Order.  Mr Leung invites this court to consider dealing with the defendant with a community service order.

REASONS FOR SENTENCE

8.  In HKSAR v Lee Yau Wing[2], an authority which has not been cited to the Court of First Instance in the case of Lee Fai, the Court of Appeal found that while the degree of harm or injuries suffered by the victim remained an important factor to be taken into account in sentencing, the dominant sentencing consideration in a case of causing grievous bodily harm by dangerous driving was the level of culpability of the offender’s driving.[3] In addition, the Court of Appeal emphasized that given the nature of the offence, the sentencing court should be less concerned with rehabilitation of the offender (who, in most cases, would otherwise be a law-abiding citizen) than with general deterrence.[4]  The Court of Appeal in that case upheld, on a guilty plea, a prison term of 10 months for a first offender who disobeyed the traffic lights, drove slowly across a pedestrian crossing, and ran into an elderly person who, in the words of the Court of Appeal, “quite fortuitously for the applicant, ultimately recovered quite uneventfully”[5].

9.  There is, as Mr Leung has submitted, an absence in this case of the more serious aggravating factors such as road racing, failing to stop at a road block, ferocious driving to avoid lawful apprehension, driving while under the influence of alcohol or dangerous drugs, etc.  However, there are four obvious factors that must be taken into account in assessing the degree of culpability in the defendant’s driving.  First, the defendant was approaching a pedestrian crossing at the immediate vicinity of which the presence of pedestrians must clearly have been within his foresight and contemplation.  Secondly, the crossing was controlled by a set of traffic lights against which the defendant acted; this shows that the defendant has failed to observe the traffic lights.  Thirdly, the defendant was negotiating an almost ninety-degree turn; he must be aware that while doing so, at any time, in any situation, he must proceed at such a slow speed as would allow him to have a clear and unrestricted field of vision ahead, so that he could deal with emergencies, should they arise.  Fourthly, he has proceeded in about 30 to 40 km/hour which was far too excessive in all the circumstances.  In the court’s view, the defendant’s standard of driving has fallen not just far below, but very much more so, than that which would be expected of a competent and careful driver.

10.  It is unarguable that Mr Cheung has suffered very serious injuries which have necessitated a prolonged period of hospitalization.  While this is not the most important sentencing consideration, the serious injuries Mr Cheung has suffered do confirm and demonstrate the clear and obvious risk of severe injuries to which the pedestrians at the crossing have been subjected by reason of the defendant’s driving at the relevant time.

11.  The offence carries a statutory maximum of seven years’ imprisonment.  In view of the sentencing principles propounded in Lee Yau Wing’s case, together with the cases referred to therein, and given the degree of the defendant’s culpability identified above, an immediate term of imprisonment is inevitable.

12.  There is no reason to think that the defendant has consciously or deliberately disobeyed the traffic lights (cf. Lee Yau Wing’s case at paras 46 and 47); however, his failure to observe and obey the traffic lights in the particular circumstances of this case and his proceeding at the speed as he did when negotiating the right-hand turn have constituted a grave disregard of the safety of other road users.

13.  In all the circumstances, an appropriate starting point is one of 15 months’ imprisonment.  The defendant is entitled to the customary one-third discount for his guilty plea.  There is, as the parties agree, a mandatory driving disqualification period of not less than two years.  In addition, there is a mandatory requirement that the defendant must attend and complete a driving improvement course.

CONCLUSION

14.  For the offence of which the defendant stands convicted, he is sentenced to ten months’ imprisonment.  In addition, it is ordered that the defendant be disqualified, pursuant to section 36A(3)(a) of the Ordinance, from driving all types of vehicles in Hong Kong for a period of two years, and that pursuant to sections 72A(1A) and (3B) of the Ordinance, he do, within the three months prior to the expiry of the driving disqualification period, attend and complete at his own cost a mandatory driving improvement course.