HKSAR v. CHAN KIN WING

DCCC 984/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 984 OF 2014

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Reasons for Sentence

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1.  You have pleaded guilty to one charge of dangerous driving causing grievous bodily harm. This is contrary to Section 36A of the Road Traffic Ordinance, Cap 374.

2.  The facts that you have agreed are that on 5 April 2014, at about 2.45 in the afternoon, you were driving a double‑decker bus on Heung Sze Wui Road in Tuen Mun northbound. 

3.  Two taxis were being driven by PW1 and PW2 on the same road, but southbound.

4.  At that time, the roads were busy, the weather was good and the roads dry.  All vehicles, including your own, approached the T-junction which was controlled by traffic lights.

5.  Your intended path was to turn right at the lights.  The lights at that junction for your direction was in fact red at the time.  You stopped behind a taxi, but this taxi was not turning right, it intended to drive straight on.  Both your path and the taxi’s path was controlled by different traffic lights.    

6.  The taxi driver drove on because his light turned green.  You followed him but turned right.  This was right into the path of PW1 in his taxi.  His taxi was shunted into the next lane and hit by PW2’s taxi who could not stop in time.

7.  Your mistake was that you should not have followed the taxi to move off.  His light turned green, but your light was still red. 

8.  This was a momentary lapse of judgment.  I accept that you did not deliberately drive through red light.  A passenger on your bus verified that you had, in fact, stopped at the junction before moving off again. 

9.  The result of your error meant that four persons in the first taxi that your bus hit were seriously injured.  This included a three year old boy who suffered a fractured right tibia and fibula.  The driver of the first taxi suffered abrasions, second taxi driver suffered from chest contusions and neck pain, and two other passengers of the first taxi driver who were with the child suffered serious enough injuries, they and all the others I have referred to spent a number of days in hospital.

10.  I don’t have any evidence to the contrary, but I am assuming, unless I am told otherwise, they have made a full recovery, and there is no information that any have suffered any permanent damage from their injuries.  I make the assumption and hope that they have made a full recovery.

11.  You have a clear record, and you obtained your driving licence in 1995.  You have one careless driving conviction, the offence date was in 2013, for which you were fined $900 in Tuen Mun Magistracy. This is not a bad traffic record.

12.  You are 43 years old, you came to Hong Kong from mainland China in 1992.  You married in 2000, and you and your wife have a 13-year-old and a 7-year-old.  I have been told that your wife works as well, but you are the main breadwinner. 

13.  You have been gainfully employed since 1992, and had been employed in numerous professions, but for two years, from 2012, you were a bus driver.  Since this accident, you no longer drive a bus, you are now a construction site worker.

14.  I have been told that your wife is not well, she is suffering from mixed anxiety depression disorder, and I have a referral letter dated last week referring her to the Department of Psychiatry in Tuen Mun Hospital.  It seems that issues may have arisen from the stress of childcare, in particular, caring for a teenage daughter, but I am sure it has been exacerbated by this accident and this pending court date. 

15.  Your best mitigation is your plea of guilty. You have accepted there was a momentary lapse of judgment, and you are remorseful. 

16.  I accept defence counsel’s submission that facts in this case are not the most serious for the nature of this offence, and you did not deliberately jump the red light.  Sadly, your momentary error led to an accident which had serious consequences.

17.  I have been referred to two authorities by Mr McGowan, HKSAR v Lui Chung Tak CACC 221/2012 and HKSAR v Lee Yau Wing CACC 282/2012.  I have referred myself to both authorities, in particular in Lui Chung Tak, Court of Appeal refers to several similar cases and sentences imposed.  Sentences vary, because for this type of offence, there is no tariff.  Sentencing will depend on individual circumstances and the determinable degree of culpability and criminality.

18.  In this case, I find the defendant’s culpability at the low end of the spectrum. 

19.  Defendant, please stand up.  Having considered those authorities I have just referred to, mitigation put forward on your behalf and your background, as well as the facts of this case, a term of imprisonment would be appropriate.  However, before I consider that, I intend to call for a community service order report.  This does not mean that I will impose a community service order, but I want report before I sentence.  You must be aware that all sentencing options will remain open.  I will adjourn this for such a report and I will remand you in custody while I call for such a report.

Court adjourns - 11.03 am

24 March 2015

9 April 2015

Court resumes - 10.01 am

Defendant present. Appearances as before.

20.  Yes, defendant, you pleaded guilty to one charge of causing grievous bodily harm by dangerous driving.  I will repeat, to some extent, what I said after you pleaded guilty on the last occasion. 

21.  This accident happened on 5 April last year.  You were driving a bus and came to a junction controlled by traffic lights.  This was in the Tuen Mun district.

22.  You came to a stop behind a taxi.  That taxi intended to go straight ahead.  You intended to turn right.  These two directions were controlled by two different lights.  When the taxi driver’s green light came on, he drove off.  You followed suit.  However, at that moment, the light controlling your direction was still red.  You had a momentary lapse of concentration and followed the taxi driver.  

23.  After you turned right, you hit a taxi at the junction.  After you hit that taxi, another taxi could not stop in time and also hit that first taxi.  

24.  I said on the last occasion and I repeat again, I accept that you did not deliberately jump the lights.  This was an error that was not deliberate, it was a momentary lapse of judgment. 

25.  Sadly, there were serious consequences.  Three passengers and the driver of the first taxi were injured, the driver of the second taxi was also injured.  Most seriously injured were PW3, a male passenger, PW4, a female passenger, and a three year old child, all in the first taxi.

26.  PW3 suffered injuries to his kidneys and the accident caused an obstruction to his small intestine, PW4 suffered broken bones in her right hand, and the child suffered fractured tibia and fibula of his right leg. 

27.  As I have said on the last occasion, your best mitigation is your plea of guilty.  It shows your remorse and the probation officer says that you were very sorry and upset that you had hurt these victims.  You have a clear record, and as far as your driving record is concerned, you obtained your driving licence in 1995, and you have one conviction of careless driving in 2013 where you were fined $900. 

28.  You became a bus driver at the end of 2012, so you had only been driving a bus for just over a year when this accident occurred.  You are no longer a bus driver, you resigned after this accident.

29.  As far as your background is concerned, you are 43 years old, a family man with two children, a 14 year old teenage daughter and a 7 year old son.

30.  You have been working all your life since you were 18 years old, and you are the major breadwinner of your family. After the accident and to date, you have been working in a construction site, earning $14,000 a month. 

31.  From what I have been told and what I read in the report I obtained, you are a good father and a helpful and loving husband. Your wife is also employed, but works as a packaging worker earning $7,000 a month.  However, she is not of great health and is suffering from an anxiety disorder, and now being treated by the Psychiatric Department of Tuen Mun Hospital.  I have seen a referral letter which sets out medications prescribed, symptoms suffered, and specifically mentions childcare issues where your teenage daughter is concerned.

32.  I was referred to two authorities on the last occasion by Mr Omar, and I said on the last occasion that I accepted the defence’s submission that the defendant’s culpability here was at the low end of the spectrum for an offence of this nature, and I accepted the defendant drove dangerously because he had a momentary error of judgment, there was nothing deliberate in his manner of driving. 

33.  I remanded you in custody for 14 days and called for a community service order report.  I did that because you are a first-time offender, although you do have one previous conviction for careless driving.  I did that because I accepted what was said in mitigation that you had stable employment and a strong family background.  I did call for a report because I was convinced you were genuinely remorseful, and doubt, in these circumstances, you would reoffend again.

34.  A term of imprisonment would be a particular hardship not only for you but for your family.  It has been said time and time again that sentencing for these offences require a deterrent effect on drivers, and that is why normally a term of imprisonment is imposed. 

35.  However, I, for reasons I have just set out, called for a community service order report, and I am of the opinion that a constructive period of community service can be a method by which a defendant can make good the damage he has caused.

36.  In this case, you are very willing to do community service, and the probation officer is willing to take you on as a suitable candidate for community service. 

37.  Having given it careful consideration, I agree with the probation officer, and despite this being a serious case, will consider a community service order appropriate.  I will order you to complete a community service order of 240 hours.

38.  You must be warned that if you do not complete the 240 hours to the satisfaction of the probation officer, then the probation officer will inform the court, the court does have the power to sentence you all over again.  And obviously, if I have to do that, it would be a case of imposing an immediate custodial sentence.  Do you understand?

39.  There is also a mandatory disqualification that I have to consider.  For this offence, it should be not less than two years, unless the court, for special reasons, decides not to make such an order, but here I see no reason not to make such an order.

40.  I disqualify the defendant from driving any class of vehicles for a period of three years.

41.  Defendant, you are also ordered to attend and complete a driving improvement course at your own cost within the last three months of the disqualification period.

42.  You must be warned that it is an offence not to attend and complete the driving improvement course, and in fact you will remain disqualified until you do complete it.  Do you understand that?