HKSAR v. CHENG WANG WAI

DCCC 725/2018

[2019] HKDC 151

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 725 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of ‘causing grievous bodily harm by dangerous driving’, contrary to s 36A of the Road Traffic Ordinance, Cap 374 (“RTO”).

Summary of facts

2.  At around 2:35pm on 31 January 2018, the defendant was driving his car along the 2^nd lane of Choi Hung Road towards Choi Hung Estate when he drove past the pedestrian crossing against the red traffic light signal.

3.  It was drizzling at the time.  The road surface was slightly wet but in good condition.  Visibility was good and traffic condition normal, with a speed limit of 50 km/h.

4.  Mr. Foo was crossing at the said pedestrian crossing at the moment that the defendant drove past and the nearside of the vehicle knocked him down.

5.  He sustained injuries to his head and chest as a result and was sent to hospital.  He was diagnosed with closed fracture of multiple ribs, closed fracture of clavicle, right pneumothorax (collapsed right lung) and left scalp laceration.  Mr. Foo was hospitalized for 25 days.

6.  According to Mr. Foo, at the time of his crossing, the pedestrian light signal was green and not flashing and vehicles had stopped before the traffic lights in the 1^st lane.  Mr. Foo managed to walk across the width of the 1^st lane of Choi Hung Road.  When he saw that there were no vehicles in the 2^nd lane, either stopped there or approaching, he continued to walk on.  He had taken 2 or 3 more steps before he was knocked down by a car and lost consciousness.  He woke up to find himself in hospital.

7.  The front bumper and front registration plate of the defendant’s vehicle were damaged.  The near side front door reflecting mirror was damaged and detached, and the front windscreen was ‘smashed.’

8.  The incident was witnessed by Mr. Ku, the driver of the KMB bus that was stopped before the said traffic lights in the 1^st lane.  He said that his bus was around 15 to 20 meters from the traffic lights when they turned red.  He continued to approached the lights and was the first vehicle stopped in front of the lights in the 1^st lane.  He saw Mr. Foo walking on the pedestrian crossing in front of him, from left to right.

9.  Mr. Ku then saw the defendant’s vehicle driving pass the crossing in the 2nd lane at around 50 km/h.  He heard a loud sound of collision and realized that Mr. Foo had been knocked down by the defendant’s vehicle.  Mr. Foo was thrown forward and the defendant’s vehicle stopped around 10 meters ahead of the bus.  The whole incident happened in about 2 seconds.

10.  The defendant was arrested.  Under caution, he admitted that he was driving his vehicle at around 50 km/h along the 2^nd lane of Choi Hung Road heading to Kowloon Bay at the material time.

11.  He claimed that his car was about 6 to 8 meters from the junction of Choi Hung Road and Tai Yau Street when he noticed that the traffic lights at the junction turned from green to amber.  He was, however, not aware of what the traffic light signal was when his vehicle got to the white line of the junction.  He did not slow down, kept driving, and continued to go through the junction while looking ahead.

12.  The defendant claimed that a vehicle on his left blocked his vision of the pedestrian crossing, but there were no vehicles in front of him.  He thought he could go ahead and cross the junction despite the traffic lights having turned amber.

13.  The defendant said that when he first saw Mr. Foo, he was already at the nearside of his vehicle, just 1 to 2 body-widths away, walking to his right.  He said that around 1 to 2 seconds later his car hit Mr. Foo and the defendant immediately applied the brakes.

14.  The incident was caught on the KMB bus’s car camera.  The footage shows Mr. Foo stepping onto the pedestrian crossing from the left in front of the bus and walked across the width of the 1^st lane on the crossing.

15.  It then shows the defendant’s vehicle driving past the bus in the 2^nd lane, hitting Mr. Foo, throwing him off while the vehicle and continued to move forward but eventually stopped, with Mr. Foo lying on the ground.

16.  The prosecution informed the court that Mr. Foo has recovered fully from his injuries and suffers no permanent physical disabilities.

Previous convictions

17.  The defendant has a clear criminal record.  He also has no traffic conviction record.

Mitigation

18.  The defendant is 36, single.  He has an elder brother and an elder sister.  He lives with his parents.  The defendant is in the wholesale business with income of around $15,000 per month.  He would contribute about $5,000 every month to his parents.

19.  I was told that the defendant’s mother has been diagnosed with cancer of the urinary bladder in early 2018.  Mr. Yan said in mitigation that the defendant is the only child looking after the parents and that he would go home for dinner whenever he could.  Yet, when asked, the defendant was not able to inform the court what medical treatment his mother has been receiving.  Nor was he able to say who has been paying for the mother’s medical expenses.  It is the defendant’s understanding that his siblings are helping out with their mother’s medical expenses, but he is not sure.

20.  The defendant received his driving licence in August 2001.

21.  It is the defendant’s case that he had gone through the red light controlling the 1^st and 2^nd lanes because he had mistaken the amber light controlling the right turning 3^rd lane as his, and it was, therefore a “momentary lapse of attention and wrongful judgment”[1] that led to the accident.

22.  Mr. Yan for the defendant relies on HKSAR v Lee Yeung-chi, Richard, DCCC 26/2017 in support of his submission that a Community Service Order is an appropriate sentence in the present case.

23.  At the request of Mr. Yan, a community service order report was ordered to be prepared on the defendant, having warned the defendant that the court is highly likely to impose an immediate custodial sentence.

24.  The defendant informed the Probation Officer in the interview that he had tried the drug Ecstasy 2 to 3 times in a bar back in 2000.  On hearing that information, the Officer arranged for a urine test with the defendant’s consent.  The test came back positive for ketamine.  Therefore, on the basis of the defendant being a drug addict, the Officer recommended against a Community Service Order.

Sentencing considerations

25.  The maximum sentence for an offence under s.36A of the RTO on conviction upon indictment is that of a level 5 fine and 7 years’ imprisonment.

26.  In the context of sentencing, whether the defendant had driven through the red light on purpose or by mistake is a fundamental issue that needs to be resolved.

27.  In the case of HKSAR v Lee Yau Wing[2], the Court of Appeal provided the guidance for the sentencing judge dealing with similar offences:-

“39. If the judge bears the principles of retribution, deterrence and denunciation in mind when considering the appropriate level of punishment for the offender then the sentence that he imposes should be a balanced, proportionate and just one. In this way the courts will contribute to the important objective of “maintaining public confidence in the sentencing system.”

28.  The facts of Lee Yau Wing are not entirely dissimilar to that of our present case.  There the applicant slowed down his vehicle when approaching a pedestrian crossing but continued to drive through the red traffic light and hit the knee of a 75-year-old pedestrian on the crossing.  The speed of the vehicle was slow enough to allow the car to stop instantly when the applicant applied the brakes.  The pedestrian was not knocked down but she did suffer a fractured knee from the impact with the nearside of the vehicle.

29.  In upholding the trial judge’s 15 months’ imprisonment starting point, the Court found that “in the very unusual circumstances of this case the applicant’s driving misconduct was serious but it was in the middle to the lower end of the range of seriousness.”

30.  It is the Court’s finding that “the applicant’s culpability lies in his wilful refusal to stop at a red light, made worse because the red light controls not just a traffic intersection but also a pedestrian crossing, and a deliberate risk‑taking in allowing his motor vehicle to continue travelling forward onto the pedestrian crossing when he could not see if any pedestrian was using the crossing.  For this level of culpability the District Judge was right to adopt a starting point for sentence of 15 months’ imprisonment.”

31.  In Lee Yau Wing and similar cases involving a driver driving through a red light, the level of culpability is rendered more serious when there is a “conscious disregard” for traffic lights.  The use of the word conscious must imply that where the disregard was based on a mistaken belief such as the defendant is suggesting, the level of culpability would not be as high.

32.  In our present case, the version of fact put forward by the defendant in mitigation is that, when his vehicle was probably about 6 to 8 meters from the traffic light, he had mistaken the 3^rd lane traffic light as his and so had driven on, thinking that he was driving through an amber light.

33.  Since the 3^rd lane traffic light was actually positioned slightly in front of the 2^nd lane traffic light, the defendant would have been slightly more than 6 to 8 meters from the 2^nd lane traffic light white line at that moment.

34.  The defendant said he was driving at around 50 km/h at the time.  This is supported by the evidence of the bus driver Mr. Ku.

35.  According to the Road Users’ Code, the shortest stopping distance for a vehicle travelling at 40 km/h is 20 meters.  At slightly more than 6 to 8 meters from the 2^nd lane traffic lights, it would not have been possible for the defendant to bring his vehicle to a complete stop before the traffic lights even if he had started to brake immediately.

36.  It would have been, therefore, reasonable for the defendant to have decided to not slow down and continue to drive through the amber light, if he really did hold that mistakenly belief.  I find that he did so hold for the following reasons.

37.  The claim that he had mistaken the amber light for the 3^rd lane as his was not explicitly stated in the defendant’s video recorded interview with the Police dated 21 March 2018, one week shy of 2 months from the incident.

38.  The defendant, however, did maintain that he thought the light was amber and so he continued to drive through it.

39.  Although he did not mention that he had mistaken the 3^rd lane lights as his, it is possible that he was then still operating under the genuine belief that he was looking at the 1^st and 2^nd lane light at the time and so would not have mentioned anything about the amber light being of the 3^rd lane traffic lights.

40.  The video footage from Mr. Fu’s KMB bus (channel 8, showing the 2^nd lane as a mirrored image) show that in the 5 seconds it took for the defendant’s vehicle to reach the front of the bus, the bus was completely stationary the whole time.

41.  The defendant’s vehicle was in the 2^nd lane throughout its approach to the bus.  Slightly in front and to his right was a goods vehicle which was travelling in the 3^rd lane and had eventually turned right into Tai Yau Street.  In fact, the defendant’s vehicle had overtaken the goods vehicle just as it began to turn right into the opposite carriageway of Choi Hung Road.

42.  Bearing in mind the length of time the defendant had to see the stopped bus in the 1^st lane and  the relative positions and movement of the defendant’s car and the goods vehicle, the defendant’s failure to correctly see that the traffic lights governing his lane under those circumstances is driving manner that falls far below what would be expected of a competent and careful driver; and it would be obvious to a competent and careful driver that driving in that way would be dangerous, and hence the guilty plea from the defendant.

43.  However, I find that the defendant’s version of fact of how he had observed the wrong light and thus was driving under the mistaken belief that he was going through an amber and not a red light can very well be true, as supported by his more contemporaneous statement to the Police and the Traffic Light Sequence Report as interpreted by Mr. Yan for the defendant.

44.  That being the case, there was no ‘conscious disregard’ of the red traffic light and I find that the level of culpability of the defendant’s driving is rendered lower than it would have been had he consciously and deliberately chose to drive through the red light.

45.  Mr. Yan seeks to rely on the District Court case of HKSAR v Lee Yeung-chi, Richard, DCCC 26/2017 to suggest that a Community Service Order is the appropriate sentence in the circumstances.  Despite the fact that CSO is not recommended by the Probation Officer, for the following reasons, I find that the case can be distinguished and CSO is not the appropriate sentence in any event.

46.  First, the defendant in Lee Yeung-chi was 62-year-old gentlemen with an “impeccable driving record”.  In the 37 years since he got his driving license, he had received only 2 fixed penalty tickets for speeding in 2012 and 2014, the last one being 2 years before the offence date.

47.  In our case, the defendant is 26 years younger at 36 years old.  Yet in the 3-year period from July 2015 to July 2018, the defendant has amassed these citations: 5 for speeding, 2 for failing to comply with traffic signals, 1 for crossing continuous double white line, 1 for using mobile phone whilst driving, 3 for failing to display a valid licence and 1 for driving unlicensed vehicle.  The defendant’s driving record is far from being impeccable.

48.  Also, the personal circumstances of the defendant in Lee Yeung-chi were rather exceptional.  The defendant had been a Civil Servant for 36 years.  The defendant’s mother passed away about 1 year before the incident.  His younger brother had a stroke and suffers from kidney failure, requiring daily dialysis.  His 95-year-old father insisted on living alone in the New Territories.  On the day of the incident, the defendant was on his way to visit his father, as he regularly did.

49.  The learned judge accepted that the incident was a momentary lapse of attention.  No doubt the impeccable record and exceptional personal circumstances of the defendant must also have been on his mind when he decided that a Community Service Order was the most appropriate sentence.  These exceptional mitigating features do not exist in our present case.  I find that an immediate custodial sentence is the only appropriate sentence.

50.  As to the length of sentence, Mr. Yan seeks to rely on the District Court case of HKSAR v Mok Wong Kin-ming [2018] HKDC 1320; DCCC 397/2018 where the learned judge adopted a starting point of 6 months’ imprisonment and ordered the sentence to be suspended for 3 years based on there being circumstances that warranted such a suspension.

51.  There the defendant also drove through a red traffic light and knocked down and caused grievous bodily harm to the 78-year-old victim who was walking across the pedestrian crossing.  The judge accepted that the 77-year-old defendant, who had a clear record and a relatively good traffic citation record, did not notice the red traffic light as she drove past the crossing.

52.  The judge took into consideration that driving past a green pedestrian light is a serious traffic offence and found that a custodial sentence was called for and adopted the said starting point of 6 months.  Based on the fact that the victim had recovered steadily, the old age of the defendant, the serious illness that she was suffering and her clear record, the judge ordered the sentence to be suspended.

53.  In adopting the rather low starting point of 6 months’ imprisonment, the learned judge must have taken into account the very special personal circumstances of the defendant in the Mok Wong Kin-ming case.  Mr. Yan accepted that the circumstances in that case are not present in here, but he urged the court to adopt a similar, if not lower, starting point.

54.  In our present case, in view of the circumstances of the commission of the offence, in particular that there was no conscious disregard of the red traffic light when the defendant drove through it, but at the same time recognizing that the defendant’s driving was dangerous, I would place the defendant’s driving at the lower end of the scale of seriousness when compared to cases of vehicles being driven through a red traffic lights on purpose and colliding with a pedestrian.

55.  Bearing in mind firmly the principles of retribution, deterrence and denunciation, I find that an immediate custodial sentence is the only appropriate sentence, and that the proper starting point should be 9 months’ imprisonment.

56.  The only mitigating factor is the defendant’s timely guilty plea and for that he is granted the full one-third discount.  The final sentence is, therefore, 6 months’ imprisonment.

57.  I find that the overall circumstances of the case do not warrant a suspension of this sentence.

Disqualification

58.  Pursuant to s 36A(2) and (3)(a), and there being no special reasons not to do so, I order that the defendant be disqualified for a period of 2 years.

Driving Improvement Course

59.  Pursuant to s 72A(1A), (3) and (3B)(b), and there being no special reasons not to do so, I order the defendant to attend and complete a driving improvement course at his own cost within the last 3 months of the expiration of the disqualification period.