HKSAR v. LEE YAU WING

DCCC 352/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 352 OF 2012

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Causing grievous bodily harm by dangerous driving". The defendant drove a private car and the victim is a 75-year-old lady.

Summary of Facts

2. The traffic accident occurred at the junction between Hong Ning Road and Chun Wah Road in Sau Mau Ming ("the Junction").  Both the vehicular and pedestrian traffic at the Junction were controlled by traffic lights with a yellow-striped pedestrian crossing.

3. About 11:30 am on 10 October 2011, Madam YIP Fung (PW1) wanted to cross Hong Ning Road to go to the park.  She noticed that the pedestrian traffic light regulating the yellow-striped pedestrian crossing was green and flashing.  Thinking that she had sufficient time to cross the road within the duration of the green light, PW1 slowly walked out to the pedestrian crossing.  When she reached the 2^nd lane of the road, her knee was suddenly hit by a private car (LE 1198), which was driven by the defendant.  PW1 then fell onto the ground.  At the time of impact, PW1 noticed that the pedestrian traffic light was still green and flashing.

4. Before the accident, Mr. WONG Wai-leung (PW2) was driving his minibus along the 1^st lane of Hong Ning Road (uphill direction). Upon reaching the Junction, PW2 stopped his minibus before the stop line as the vehicular traffic light was red.  He then saw PW1 slowly crossing the road from the nearside pavement via the pedestrian crossing.  When PW1 had walked past PW2's minibus for about 3 to 4 feet, the defendant's car suddenly appeared on the 2^nd lane of the road and its front nearside hit the right side body of PW1 at the pedestrian crossing.  PW1 fell down after impact.  PW2 immediately checked the vehicular traffic light regulating his direction and found that it was still red.

5. Madam YIP Yuen-man (PW3) was a passenger on PW2's minibus.  After the minibus had stopped at the Junction for about 1 to 2 seconds, she heard sounds of horn coming from behind.  At that moment, she saw the defendant's car driving past PW2's minibus and then heard some sound.  The defendant's car stopped.  At that time, the vehicular traffic light regulating PW2's minibus was still red.  After about 3 to 4 seconds, the traffic light turned green and PW2's minibus moved forward.  PW3 saw PW1 lying on the ground.

6. PW1 was sent to the hospital.  Upon medical examination, she was found to have sustained the following injuries :-

(i) Right knee was on flexed position with pain and slight movement. Diffuse tenderness over knee joint and joint effusion was present;

(ii) Mild tenderness over both malleoli of right ankle; and

(iii) X-ray of right knee showed forehead tibial plateau.

PW1 was diagnosed with tibial plateau fracture in her right knee. Open reduction and internal fixation (planting) was performed on 13 October 2011. PW1 was then put on non-weight bearing walking after operation.

7. The speed limit of Hong Ning Road was 50 km/h.  At the material time, the road surface was dry and in good repair.  The weather was fine and the traffic flow was light.  The visibility at the scene was good.

8. No mechanical defect was found on the defendant's car.  The traffic lights at the Junction were functioning properly at the time of the accident.

9. Under caution, the defendant admitted that before the accident, he was driving at the speed of about 40 km/h along the 2^nd lane of Hong Ning Road (uphill towards Hip Wo Street)[1].  Since PW2's minibus obstructed his view, he could not observe PW1's presence in advance.

Mitigation & Sentence

10. The defendant is 49 years old and has a clear criminal record.  He has been licensed to drive since 1984.  For traffic offences, he has had a few speeding tickets and 1 conviction of "Careless Driving" in October 2011, for which he was fined $800 only.

11. Defence counsel Mr. Shah informed me that the defendant is married with a son (F.4 student) and a daughter (associate degree student).  The defendant worked as a truck driver in the past 10 years earning $25,000 per month.  Owing to the present accident, he resigned in April 2012.  In June 2012, he began to work in a hardware store earning $9,000 per month.  As a result of this case, the defendant's wife took up part-time employment as a messenger earning $5,000 per month to supplement the family income.

12. Mr. Shah explained that the date of the accident was the defendant's son's birthday.  The defendant took the day off from work in order to spend time and celebrate with his family.  That morning, he borrowed a car from a relative for a joy ride to visit his childhood place.  The defendant was happy and could not help thinking about his son's birthday.

13. Mr. Shah submitted that the defendant is truly remorseful and accepts full responsibility for his act.  Immediately after the impact, the defendant told PW1 at the scene many times that he was sorry.  Mr. Shah further submitted that the car driven by the defendant was a small one and it was going uphill.  The car was travelling about 15 km/h at the point of impact.  Fortunately, the injuries sustained by PW1 were in her right leg only and they are not the most serious in cases of this type.

14. A bundle of mitigation letters were placed before me.  Their contents are duly noted.

15. The Court of Appeal in SJ v LAM Siu Tong [2009] 5 HKLRD 601 held :-

"It hardly needs reminding that motorists are required to exercise the utmost care when approaching pedestrian crossings, by reason of the obvious : 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...

Thus, we are of the view that where the offence of dangerous drivingcausing death is established and this involves the running over of persons at pedestrian crossings, then, for the purposes of sentencing, it would be a serious aggravating feature that the accident has occurred in such a location. The degree of seriousness will of course depend on the precise circumstances. For example, a conscious disregard for traffic lights will likely put the case into the most serious category."[2]

16. In recent years, the courts have repeatedly emphasized the importance of having in mind a deterrent effect when sentencing in cases involving dangerous driving. In SJ v WONG Wai Hung [2011] 2 HKC 224, Tang Ag. CJHC commented that "we must drive home the message to drivers that the court takes a very serious view of accidents on pedestrian crossings."[3]

17. I bear in mind that the present offence is a rather new one.  The maximum sentence is a fine of $50,000 and imprisonment for 7 years.  I accept that the injuries sustained by PW1 are not the most serious in cases of this type.  I am also aware that as indicated in her witness statement, PW1 said the force of the impact did not cause her to fall[4]. Although there is no evidence before me showing whether the injuries would have any permanent effect on PW1, based on common sense, I can imagine the pain and suffering as well as inconvenience a 75-year-old lady would have to experience arising from such injuries.

18. The cause of the accident is the defendant's driving through a red light (albeit at a relatively low speed) at a pedestrian crossing, which is a serious aggravating feature according to the Court of Appeal.  Although the defendant has a good background and is a good husband and father, the offence he committed is a serious one and cannot be treated lightly.  In my view, an immediate custodial sentence is inevitable.

19. I understand the traumatic effect of a prison sentence would have on the defendant and his family.  However, the court must send a proper message to the general public that motor vehicles can be lethal and that drivers must shoulder the responsibility for their acts on the road.

20. I adopt a starting point of 15 months' imprisonment.  A one-third discount is given for his guilty plea, reducing the sentence to 10 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  Thus, the sentence I pass is 10 months imprisonment.

21. In addition to imprisonment, I make a disqualification order for a period of 2 years.  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period.

22. Regarding compensation, Mr. Shah informed me that the defendant is willing to pay compensation to PW1.  He is financially capable of paying $10,000 by instalments.  Since I have no information on the details of PW1's loss (in monetary terms) as a result of this accident, in order not to jeopardize her position in any civil proceedings against the defendant, I will make no compensation order.