HKSAR v. YUEN SHING CHAU

DCCC 852/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 852 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of “Dangerous driving”, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374.

Facts

2.  The accident location is near the junction at Long Ping Road and Fuk Hi Street, Yuen Long.  Long Ping Road is a four-lane two-way carriageway with a safety island between the west-bound and east-bound direction.  The east-bound side of the road is a two-lane carriageway with single way divided by broken white line with traffic light-controlled pedestrian crossing at the junction.  Vehicles travelling in the first lane from the left on the east-bound side of Long Ping Road can turn left.  The speed limit of Long Ping Road and Fuk Hi Street was 50 km per hour.

3.  On 16 March 2015 at round 1:12 pm, the defendant drove a medium goods vehicle bearing registration mark HK3262 (“the Vehicle”) along the first lane from the left of the east-bound carriageway of Long Ping Road towards the direction of Fuk Hi Street.  Madam Guo was holding her bicycle, while her 5-year old son (“the boy”) was cycling.  When the pedestrian crossing lights of Long Ping Road turned green, the boy rode across the pedestrian crossing on Long Ping Road.  Madam Guo was about 2 metres behind the boy.  Madam Guo was 1-2 steps from the safety island when the boy reached the first lane from the left of the east-bound Long Ping Road.  Madam Guo saw the defendant driving the Vehicle along first lane from the left of the east-bound carriageway of Long Ping Road towards Fuk Hi Street and could not stop in time.  The right front of the Vehicle collided with the boy’s bicycle on the left.  The boy lost balance and fell towards the right and his head hit the ground. The police was alerted.  Tyre marks of the Vehicle of 11 metres were left at the first lane from the left of the east-bound Long Ping Road.

4.  As a result of the collision, the boy sustained right side acute epidural hematoma 0.5 cm with adjacent right parietal bone fracture.  After treatment, the boy’s hematoma slowly resolved and he remained well and asymptomatic.  He was admitted for 8 days and was discharged on 23 March 2015.

5.  Under caution, the defendant admitted that:-

(a) He was travelling at around 40 km/hour along the first lane from the left of Long Ping Road and was 4-5 private vehicles away from the traffic lights, and saw the light pointing straight was green arrow while the right turn light was red;

(b) There were no other vehicles in front of him;

(c) He suddenly saw the boy cycling from the right to the left on the pedestrian crossing on Long Ping Road and the Vehicle was 10 metres away from the boy;

(d) He immediately applied the brake but could not stop in time;

(e) The right front of the Vehicle collided with the left handle of the boy’s bicycle within 2 seconds and the boy fell towards the right; and

(f) The front tyre of the boy’s bicycle was on the fast lane of Long Ping Road when he first saw the boy and the distance between the Vehicle and the boy was about 10 metres.

6.  There was no fault of all traffic signals at scene at the material time.

7.  Based on examination of the CCTV of the scene and traffic light report, Dr Cheng Yuk Ki, Forensic Scientist, is of the opinion that at the moment the Vehicle entered the accident crossing to hit the boy, the traffic signal governing the traffic direction of the Vehicle should be red.

Mitigation

8.  The defendant is aged 62, married with 3 children, all grown up.  He has been working as a driver earning about $18,000 to $20,000 per month. 

9.  Mr Yip submitted that the defendant has obtained his driving licence since 1980s.  For the last 10 years, the defendant has been working for the same company as a driver.  Given that he only had a traffic conviction for careless driving in 2011, his record could be regarded as quite good. 

10.  Mr Yip also submitted that although the defendant did jump the red light, it was not the case that he went all the way without stopping.  He did try to brake and managed to stop so that only the front part of the Vehicle came into contact with the boy’s bicycle.  The boy lost balance and fell and hit his head on the ground. Further, the collision was not a forcible collision.  Post accident examination of the bicycle revealed that the bicycle remained completely intact and undamaged.  Apart from the injury to the head, the boy did not sustain other injury such as lacerations.  Luckily the epidural hematoma sustained by the boy slowly resolved and no follow up was required.  Mr Yip referred this court to a number of cases[1] and submitted that the present case fell into the lower end of seriousness for this type of offence.

11.  Mr Yip further submitted that given disqualification is mandatory for this offence, the imposition of disqualification would effectively terminate the defendant’s working life.  The defendant’s father is financially dependent on the defendant.  Mr Yip invited this court to consider non-custodial sentence or adopt a much lower starting point if the court is minded to impose immediate custodial sentence.

Sentence

12.  The maximum sentence for this offence is fine of $25,000 and imprisonment for 3 years.  There is also a mandatory period of disqualification for not less than 6 months for a first offender.  This is the defendant’s first dangerous driving conviction. 

13.  There is no sentencing guideline for this offence as obviously each case must be decided on its own facts.  The Court of Appeal in SJ v Poon Wing Kay [2007] 1 HKLRD 660 set out the relevant sentencing principle and the matters that a sentencing court must take into account when considering an appropriate sentence.  The sentencing principle is one of deterrence for the law imposes a standard on a motorist to ensure that all who came into contact with motor vehicles were safe, be they motorist, passengers and pedestrians.  The court must look at the overall circumstances and overall culpability of the offender.  Culpability is often the dominating factor.  Major aggravating factor justifying a heavy sentence is when a person had driven with selfish disregard for the safety of other road users or his passengers or of pedestrians.

14.  The Court of Appeal has repeatedly stated that there is no excuse for driving dangerously since it involves taking risk whilst in control of a potential lethal machine (see SJ v Lam Siu Tong [2009] 5 HKLRD 601).  Further, motorists are required to exercise the utmost care when approaching pedestrian crossings for the obvious reason that it is highly likely that people will be crossing the road there, whatever the time of day or night.  Accordingly, if motorists approach pedestrian crossings at high speed or disregard traffic lights, there is a high risk that an accident will occur.  And where a collision takes place, fatalities are common. 

15.  If the red light is run consciously with the driver deliberately taking the risk of collision with a pedestrian or a vehicle, that state of mind is a further aggravating feature (see HKSAR v Lui Chung Tak, CACC 221/2012).

16.  In HKSAR v Au Yeung Kwok Kin, CAAR 21/2008, the Court of Appeal had to assess whether the sentence was too heavy based on the fact that the respondent jumped a red light and caused dangerous driving.  Tang JA at para 10 said, “However, I have to point out that even if the defendant had jumped the amber light, the offence itself is still very serious.  Drivers should not underestimate such an illegal act and the serious consequence it can cause.”

17.  In this case, the accident occurred at the pedestrian crossing.  The defendant must have been aware that there would be pedestrians using that stretch of road.  At the material time, the traffic volume was light, the weather was fine and road surface was dry.  The road was straight and the defendant’s view was unobstructed.  When approaching the crossing, the traffic light was red.  The defendant should have stopped his vehicle but he did not.  Further, he did not slow down.  He failed to keep a proper lookout and as a result, he failed to notice the boy who had been cycling across the road for a while from the right to the left, almost reaching the other end of the pedestrian crossing.  Having said that, I accept this is not a prolonged, persistent and deliberate course of very bad driving.  There is no evidence that the defendant consciously ran the red light deliberately taking the risk of collision with a pedestrian or other vehicle.  In any event, I consider the circumstances of this case to be serious, such that non-custodial sentence is not appropriate.

18.  I have considered the cases referred to by Mr Yip in the mitigation.  I note their facts and the circumstances of the offenders are different.  In HKSAR v Ng Yuet Shing, HCMA 276/2004, the sentence was ordered to be suspended on appeal as the initial sentence was only 1 month’s imprisonment and a special circumstance relevant to sentencing was not available for the magistrate’s consideration at time of sentence.  In HKSAR v Lau Shing Mo, HCMA 61/2004, the appellant’s sentence was ordered to be suspended on the ground that the magistrate had sentenced on the basis of illegal road racing.  Further, it was remarked that the conduct of the appellant in that case, though more serious than the present case, was conduct consistent with panic, which is not the case here.  In HKSAR v Au-Yong Shong Samuel, community service order was imposed on appeal given the very good background of the appellant and the fact that the collision was the result of his having mistakenly looked at a different set of lights nearby.  Finally, in香港特別行政區訴葉棠輝, DCCC 274/2013, community service order was imposed given the defendant’s good background, including no criminal or traffic conviction records at the age of 69 and the commission of the offence was due to the fact that he was not familiar with the operation of the truck in question when he was asked to repair that truck.

19.  Taking into consideration the circumstances of this case, I am satisfied that this case falls into the lower end of the range of sentences.  I considered the proper starting point is 12 months’ imprisonment.  Given the defendant’s guilty plea, he is entitled to the usual 1/3 discount for his plea.  The sentence is reduced to 8 months’ imprisonment.  I do not see any other mitigating factors justifying a further reduction of the sentence.  I do not see any grounds to suspend the sentence. 

20.  Pursuant to section 37(2), I order that defendant be disqualified for a period of 6 months for all classes of vehicles. 

21.  The defendant is also ordered to attend and complete a driving improvement course, at his own costs, within the period of 3 months beginning from the date the defendant finishes serving his term of imprisonment.