HKSAR v. LUI CHUNG TAK

CACC 221/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 221 OF 2012

(ON APPEAL FROM DCCC 22 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Line J (giving the reasons for judgment of the court):

1.  This was an application for leave to appeal a sentence of two years’ imprisonment imposed after trial in the District Court by Judge Browne for causing grievous bodily harm by dangerous driving contrary to section 36A of the Road Traffic Ordnance. On the 1 February 2013 we allowed the application and reduced the sentence to one of twenty months’ imprisonment. We said we would give our reasons later. This we now do.

2.  The facts supporting the conviction were that on 28 June 2011 the appellant was driving a light goods vehicle when he approached a pedestrian crossing.  A double‑decker bus was stationary on the first lane.  At the moment the appellant passed through the crossing the traffic light had turned to red for one second, having been on amber for three seconds.  As he did so his vehicle struck an 83‑year old female pedestrian who was on the third lane of the carriageway.  She had crossed before the green man for pedestrians was illuminated.  The appellant had been unable to brake in time.

3.  The pedestrian suffered lacerations, bruises and swelling with a subarachnoid haemorrhage over her left frontal lobe.  She was in hospital for two days.  As a result of her injuries she is no longer able to lead an independent life and her family has to look after her.  Her memory was affected and she has to walk with a stick.

4.  The mitigation included the fact that the appellant, now 52 years of age, had been a professional driver for 31 years with only one conviction for careless driving in 2011.  He was of good character, married with a family, and the sole breadwinner.  The judge noted a very moving letter from the appellant's daughter and a glowing testimonial from his employer of the last 20 years.

5.  The conviction was after trial.  It appears that there was little challenge to the prosecution witnesses and the appellant did not give evidence.  The judge accepted that the appellant was remorseful.  He also noted that there was no evidence of aggressive driving or of excessive speed, the skid marks indicating that the vehicle was driven at around 42 km per hour.  He found that there was no evidence of any prolonged driving by the appellant without regard for the safety of others; that the duration of the dangerous driving was short; and that the appellant was not under the influence of drugs or alcohol.

6.  The judge took the view that the appellant's judgment was seriously flawed and that the circumstances demanded that he should take the greatest care.  We agree.

7.  There is no need for us to set out the case law which establishes that running a red light which controls the crossing of pedestrians will be a serious aggravating factor in sentencing.  This aggravation was present.

8.  If the red light is run consciously, with the driver deliberately taking the risk of collision with a pedestrian or a vehicle, then his state of mind is a further aggravating feature.  This aggravation was not established.

9.  To say that the collision was the result of only a momentary lapse of concentration, would be to understate the position.  The approach to these lights was on a straight three lane road.  It was broad daylight. While the stationary bus may have masked the near side traffic light, the traffic light on the central reservation was visible.  It displayed an amber light for three seconds as the appellant drove toward it.  Yet still the appellant drove on and continued to do so once the light had gone to red.

10.  What made him do it?  We will never know.  All one can really say is that the aggravation of deliberate disregard was not established.  The way that the definition of the offence is drafted concentrates on the objective.  It does not require proof of any state of mind. Action without proof of a state of mind is the substance of the offence.  The fact, therefore, that the judge made no finding of recklessness (as has been prayed in aid in this appeal) establishes nothing more than the absence of the aggravation of driving with a conscious disregard for the safety of others.

11.  It is thus that we take the view that this case is certainly not in the higher culpability brackets but falls within an intermediate bracket.  The persistence in driving at an amber light and then through the red prevents the case falling into the lowest category where there is a lack of aggravating features.

12.  There is no need for us to set out the recent cases on sentencing dangerous driving causing either death or grievous bodily harm in order to establish the approach of the courts.  The approach is settled.

13.  We do not find it helpful to compare the various injuries which amounted to grievous bodily harm in the different cases cited to us, not least because their extent is to a significant extent a matter of chance although it may be that a dramatic level of injury may have an impact on sentence.

14.  Three cases concerning dangerous driving causing grievous bodily harm have been drawn to our attention.

15.  In HKSAR v Chan Chi Chiu Louis CACC 249/2012 this court (Yuen and Chu JJA) considered two years’ imprisonment, and not three years, to be an appropriate sentence for a case involving a collision, in which the victim suffered grievous bodily harm, caused by the driver’s excess speed but contributed to by the driving of the victim.

16.  In HKSAR v Lee Yau Wing CACC 282/2012 this court (Cheung JA and McWalters J) held that the trial judge had been correct to take a starting point of 15 months’ imprisonment for a case in which a pedestrian was caused grievous bodily harm whilst on a pedestrian crossing with the red light against the motorist.  Momentary inattention was not accepted and it was said the case had the aggravation of the dangerous driving occurring on a pedestrian crossing.  However, as the court recognised, the degree of seriousness depended on the precise circumstances.  The precise circumstances of the case were described by the court as being "very unusual" because the driver had proceeded at a speed of only 15 km per hour and the impact with the 75‑year old pedestrian, whilst causing serious injury to her knee, was insufficient to knock her down.  Also, the issue in the case was whether the 15 months starting point was excessive, and not whether it could have been higher.

17.  In HKSAR v Chan Kwong Chi DCCC 601/2012, Judge Woodcock took a starting point of 21 months imprisonment in a case where the driver had caused grievous bodily harm to a pedestrian, who was on a traffic light controlled crossing, when the light showed red against the driver.  The circumstances were similar to this case.

18.  It is not to be forgotten that the sentence in this case was passed after trial.  It was a shame that the appellant forwent the one‑third discount that had been available to him for a plea of guilty, especially when it appears that there was little or no challenge to the evidence that convicted him and when he declined to give evidence in his own defence.  However, the point was made to us that, unusually following a trial, the judge found the appellant to be remorseful.

19.  In our view, the gravity of the case called for a starting point falling short of two years’ imprisonment.  Our view is that 20 months would be appropriate.

20.  Is the difference between our view and the view taken by the judge sufficient to justify our intervention?  We are, with a deal of diffidence, just persuaded that it is.  We are conscious that such a result is vulnerable to the suggestion of tinkering, but proceed nonetheless in the hope that our decision survives it.

21.  Accordingly, we granted leave, treated the hearing as the appeal and reduced the sentence of two years to one of twenty months’ imprisonment.