HKSAR v. YUEN KON YIN

DCCC 1020/2017

[2018] HKDC 444

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1020 OF 2017

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Reasons for Sentence

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1.   The defendant has pleaded guilty to a single charge of causing grievous bodily harm by dangerous driving.

2.   He has agreed the facts of the case. These show that the offence occurred on 28 April 2017 in the evening.  The victim, who was PW1, was walking along Yuet Lun Street towards Manhattan Hill in Mei Foo.  She was on her way to the Mei Foo MTR Station, and in order to do that, she had to cross a pedestrian crossing at Po Lun Street.  That is a dual carriageway with two lanes with a safety island in the middle. 

3.   The general speed limit on this stretch of the carriageway is 50 kilometres per hour.

4.   The weather was fine.  It was still bright.  The road surface was dry and traffic flow was heavy.  PW1 did observe the traffic before she attempted to cross and saw no vehicle travelling in the southbound direction which she was going to cross, so she commenced to cross the lanes. 

5.   When that happened, a taxi driven by the defendant appeared on her left very suddenly, hit her at the left hip and left knee, and as a result, she fell to the ground.

6.   An observer, PW2, saw the defendant’s taxi pulling out from the lane of traffic, which was the northbound lane, driving onto the southbound lane through the double white line, crossing the double white line and driving on, and hearing the sound of the impact of the taxi with PW1.

7.   The defendant came out of his taxi and spoke to PW1, and she accused him of driving in the wrong lane, and he said he knew that he was doing so, and the defendant offered to take her to the Caritas Medical Centre for treatment, but eventually the police were called, and PW1 waited for the police to arrive.

8.   The defendant, when initially asked about what had happened, said he had taken a right turn because of the heavy traffic on the northbound lane.  He did not expect the front of his taxi would hit PW1, but it did so.

9.   As far as PW1’s injuries are concerned, she was admitted to Accident and Emergency at the Princess Margaret Hospital on 28 April 2017.  She had pain over her left knee and a genu valgum deformity.  The x-ray examination showed a vertical split fracture over her lateral tibial plateau, and she was admitted to the Orthopaedic Department.  A further x‑ray showed a fracture of her left tibial plateau.  On 8 May 2017 she received an operation with open reduction internal fixation using a locking plate on her left tibia.  The operation was uneventful.  She was discharged from hospital on 12 May 2017, and she was on sick leave until 19 July 2017.

10.   The defendant did make a further cautioned interview where he gave a more detailed explanation of what had happened.  He then agreed he had pulled out of the line of traffic near the junction of Yuet Lun Street, driven across the double white line, and hit PW1, causing injuries to her.  What he said was he had been suffering from diarrhoea, stomach pain, at the time, and in order to rush to the gas station for the toilet, he wrongly committed the offence.

11.   The defendant’s antecedents show that he is now aged 64, educated to Form 3 level, and has been a taxi driver for some 30 years.  He has been married, but divorced, and has two sons.

12.   The defendant is of clear record.  He has a number of fixed penalty driving infringements and two cases of careless driving in 2016 and 2017 which tend to show a deteriorating driving ability. He has been fined and ordered to attend driving improvement courses.

13.   The defendant also has suffered in the past from some psychiatric disorder, and so I obtained a report upon him.  He has a somewhat unfortunate history back to 2013 with a diagnosis of organic psychosis presenting with confusion and disorganised speech.  He has been admitted to Kwai Chung Hospital in the past and been under medication from the West Kowloon Psychiatric Centre.  The report I have shows he has had three episodes of admission due to his mental difficulties.

14.   He is of course mentally fit to plead, as I understand.  At the present moment, the opinion is that the defendant has a history of organic delusional disorder with cognitive deficits.  His mental condition is stable during the remand period and he is receiving treatment, and no inpatient psychiatric management is warranted and outpatient follow-up will be recommended.

15.   I am satisfied that his mental condition is stable and receiving adequate and proper treatment and it is not a factor in sentencing.

16.   As far as the sentencing for offences such as this is concerned, there are a number of relevant decisions from the Court of Appeal that set out the correct approach.  I make reference to the case of HKSAR v Lee Yau Wing [2012] HKCA 552, decisions such as Secretary for Justice v Lam Siu Tong [2009] HKCA 328, Secretary for Justice v Wong Wai Hung [2010] HKCA 390, where the court has emphasised the importance of bearing in mind the need for deterrent sentences for cases of dangerous driving.  In the case of Lam Siu Tong, of course, the court indicated that an accident taking place because of motorists disregarding traffic lights when approaching a pedestrian crossing was a matter which would be regarded as a serious aggravating feature and that conduct which showed a conscious disregard for traffic lights would put a case into the most serious category.

17.   The cause of accident in this case, of course, is the defendant driving across double white lines and then onto the pedestrian who was crossing a pedestrian crossing where she clearly has priority, and it would appear to put it into a similar category, that being a serious aggravating factor.

18.   The relevant sentencing principle is that in a case of dangerous driving causing death or grievous bodily harm, prominence should be given to the culpability of the driving, an approach that was discussed in the English Court of Appeal case of R v Cooksley [2003] EWCA 996 and at [2003] 3 All ER 40, an approach which is endorsed in Hong Kong in the case of Secretary for Justice v Poon Wing Kei [2006] HKCA cases.  Naturally, this approach equally applies to the case of causing grievous bodily harm by dangerous driving.

19.   The range of harm, of course, can be considerable in these cases.  In the present case, the harmful consequences of the driving accident were the fracture to the leg of PW1.  There is no evidence that she has not made a full recovery.  And in this case the defendant drove onto a pedestrian crossing, causing that injury, and the defendant’s culpability lies in his going through the two white lines and then driving onto a pedestrian crossing.

20.   Of course, another sentencing principle is that general deterrence, which would normally require, for an offence of this nature, the imposition of a custodial sentence, and an immediate one at that.

21.   I consider that having analysed the defendant’s driving in this case, the presence of the collision with the pedestrian on the pedestrian crossing is a serious aggravating factor, which puts this case in the category where an immediate prison sentence is appropriate.

22.   The mitigating factors of course are the fact that the consequences were fortunately not too serious and that the victim appears to have made a suitable recovery.

23.   Taking all these factors into consideration, I would take a starting point of 15 months’ imprisonment for this offence, which I will then, having regard to the defendant’s plea of guilty, reduce to a sentence of 10 months’ imprisonment.

24.   There are other consequential orders that must be made in respect of disqualifications here.  This is the first offence of dangerous driving by the defendant, so he will be mandatorily disqualified from driving for a period of 2 years.  He will also be ordered to complete a driving improvement course at his own expense within the last 3 months of the disqualification period.