HKSAR v. LUI CHUNG TAK

DCCC 22/12

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 22 OF 2012

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REASONS FOR SENTENCE

1. I convicted the defendant after trial of dangerous driving causing grievous bodily harm.

2. The charge concerned an accident which occurred at approximately 12.45pm on 28 June 2011 at a green man crossing on Cheung Sha Wan Road near its junction with Wing Lung Street Kowloon ( the green man crossing). The crossing is opposite the entrance to the Cheung Sha Wan MTR station.

3. The accident occurred on the northwest bound carriageway of the road which is made up of three lanes of traffic along a straight stretch of road. The speed limit is 50 km/hour.

4. At the material time, the defendant was driving a Light Goods Vehicle registration number JT 7668 ( the LGV) when it struck an 83 year-old pedestrian, Mme Lau Sau Heung who was on the crossing in the third lane of the carriageway.

5. Mme Lau was taken to hospital where she was treated for a number of lacerations, bruises and swelling. She underwent a CT scan which revealed that she had suffered a subarachnoid haemorrhage over her left frontal lobe. She was admitted to intensive care for close observation and discharged two days later. She was unable to provide the police with a statement.

6. After being discharged from hospital, Mme Lau, who had lived independently was no longer able to lead an independent life. Her memory had been affected, she was obliged to walk with a stick and her family had to take it in turns to look after her.

7. It was not disputed that the defendant was the driver of the LGV at the time of the accident and that the vehicle had hit Mme Lau when she was on the green man crossing.

8. I accepted the evidence of a pedestrian, PW1, who was waiting to cross the crossing at the time of the accident. He told the court that Mme Lau was struck by the LGV on the third lane of the crossing one second after the lights had changed to red for vehicles traveling along Cheung Sha Road towards Mei Foo. The amber phase for the traffic lasts for 3 seconds.

9. After the accident the defendant indicated to the police the start of the skid mark created by his front offside wheel which was the position in the third lane where he had started to break. A police officer had measured the skid mark to be 14.1 meters. I was however satisfied that this measurement was not correct and the skid mark was almost certainly longer as the officer had measured the skid mark from its commencement to the rear wheel of the LGV, which is 4 meters from the front wheel. At the time of taking pictures of the defendant’s vehicle after the accident the front wheels were wet and the ground below the LGV was damp.

10. An expert prosecution witness said that for an LGV of the kind driven by the defendant making a skid mark of 14.1 meters would indicate the vehicle was driven at a speed of 42kmp on a wet road and 50 kmph on a dry road. The stopping distance for a vehicle being driven at that speed would be 24.6 meters.

Mitigation

11. The defendant is 52 years of age and has a clear criminal record. He has been a professional driver of LGV’s for 31 years and has one previous conviction for careless driving in 2011 when he was fined HKD1200 and disqualified from driving for 1 month.

12. He earns HKD14,000 and is the sole breadwinner for his wife, who is a housewife and his daughter who is at University in Hong Kong and his son who is about to start university.

13. I was told the defendant comes from a grass roots family and has worked hard all his life. He works as a driver 8 hours per day. This offence is completely out of character.

14. Two letters of support were submitted to the court. A very moving letter from the defendant’s daughter and a glowing testimonial from his employer who has employed the defendant for the last 20 years.

The law

15. The maximum sentence for this offence as provided in Section 36A(1) of the Road Traffic Ordinance is a fine at Level Five and an imprisonment term of 7 years. The maximum period of imprisonment is two years more than for offences of dangerous driving

16. It is further provided in Section 36A(2) that a person convicted of the offence shall be disqualified for a period of not less than 2 years in the case of a first conviction, unless the court for special reasons orders that person be disqualified for a shorter period or that the person not be disqualified. No special reasons have been advanced in this case.

17. Road accidents can cause immense human suffering. Vehicles are potentially lethal machines.  Those who are in charge of vehicles must bear in mind the duty they owe to other road users. 

18. As the Court of Appeal said in Secretary for Justice v Poon Wing Kai[2007] 1 HKLRD 660

“Since sometimes there might be extremely grave consequences flowing from acts of dangerous driving, it is necessary to have in mind a deterrent effect.  The standards required by the law for motorists are there to ensure that all who come into contact with motor vehicles, including other drivers, passengers in the defendant’s car and pedestrians, etc are safe.  While it might be right in some instances not to treat violators of traffic laws as true criminals, for offences such as dangerous driving causing death, the offender might not necessarily be seen in quite such a benevolent light, in particular so in cases where it was obvious to the offender himself that his driving was dangerous”. 

19. In deciding the appropriate sentence, the court should take care not to be overwhelmed by the outcome.  It is the culpability of the defendant which is the dominant factor.  Whilst the impact on the victim and her family are relevant sentencing considerations, it must be remembered that the defendant  in the present case did not intend to cause serious injury. 

20. I am told that the defendant is very remorseful now.  I have no reason not to accept this.  Indeed,all drivers who have a conscience will feel extreme regret and remorse where theirdriving causes serious injuries  like this.   

21.  I noted that there is no evidence of aggressive driving on the part of the defendant.  It was not a case of excessive speeding.  There is no evidence of any prolonged driving of the defendant with no regard for the safety of others.  The duration of the  dangerous driving was short.  The defendant was not under the influence of drugs or alcohol.  There is no indication that the vehicle was not properly maintained. 

22.  A sentence of imprisonment should only be imposed if necessary and no longer than necessary.  I appreciate that when a person starts to drive his vehicle, he would not contemplate that the driving will result in an imprisonment term.  Drivers must bear firmly in mind their duty to other road users. 

23.In my view, the defendant’s judgment in this case was seriously flawed. The circumstances demanded that the defendant should take the greatest of care.

24. The offence of dangerous driving simpliciter carries a  lower sentence than the offence of dangerous driving causing grievous bodily harm, thus indicating that the legislature regards the consequences of dangerous driving as being a relevant sentencing consideration.

25. In Secretary for Justice v. Wong Wai Hung CAAR 7/2010, the Court of Appeal considered an application for review in respect of a case of dangerous driving causing death where the elderly deceased had been knocked down on a zebra crossing. In that case the trial judge had imposed a sentence of 12 months imprisonment. The court held  that this sentence was manifestly inadequate and that a sentence of 4 years would have been appropriate. The court decided that as this was an application for review to discount the sentence to 2 years and 6 months.

26.  Hon Tang J in Wong Wai Hungmade the following observations:

“With respect, the learned judge has failed to take sufficient account of the fact that the deceased and the domestic helper were crossing a zebra crossing when the Respondent’s car hit them.  I have set out in full at para. 4 supra the learned judge’s description of the various warnings which should alert any driver to the need to drivewith extra caution. 

19. In Secretary for Justice v. Lam Siu Tong[2009] 5 HKLRD 601, this Court (Ma CJHC, Hartmann JA and Saw J) made clear that it would be a serious aggravating feature that dangerous drivingcausing death occurred at pedestrian crossings, and that a conscious disregard for traffic lights would be likely to put the case into the most serious category. This court also said one must not overlook the fact that an innocent life has been taken away, and that good character and remorse may count for very little.

20. Lam Siu Tongwas concerned with two accidents on pedestrian crossings.  The case concerning the driver of a double‑decker bus (Wong) is particularly relevant.  Wong had approached a pedestrian crossing at a junction in the middle lane.  The traffic lights were red, and a bus and a dump truck had already stopped in the inner and outer lanes respectively.  He did not see the red lights, nor slow down.  The pedestrian lights were in green, Wong hit a man on the crossing, killing him, and injured another pedestrian who blacked out and lost 3 front teeth.  He was sentencedto 20 months’ imprisonment and disqualified for effectively 40 months.  His sentencewas increased on reviewon the basis of a starting point of 3 years.  At the time of the offence, the maximum sentence was 5 years.

21. In recent years, the courts have repeatedly emphasized the importance of having in mind a deterrent effect when sentencingin cases involving dangerousdriving.  There is of course a public dimension and the courts must be mindful of “the importance of maintaining public confidence in the sentencingsystem” per Lord Bingham CJ in R v Howells[1999] 1 All ER 50 at 54.  Public confidence in the sentencingsystem is essential to the maintenance of the rule of law.

22. In England, the leading case on sentencingfor this kind of offences is R v. Cooksley and Ors[2003] 3 All ER 40, where the English Court of Appeal provided sentencingguidelines.  Cooksleyalso explained that causing death is invariably a very serious crime, and that even where there are no aggravating circumstances, a short custodial sentenceof perhaps 12 to 18 months should be the starting point, progressing through intermediate culpability (2 to 3 years), to higher culpability (4 to 5 years) and most serious culpability (up to maximum of 10 years).  Culpability is the determining factor.

23. In Secretary of Justice v Poon Wing Kay[2007] 1 HKLRD 660, this Court (Ma CJHC, Stuart-Moore VP and Stock JA) expressed general agreement with the Cooksleyapproach.  Poonalso emphasized that it is important for the courts to drivehome the message that there may sometimes be extremely grave consequences flowing from acts of dangerousdrivingand it is therefore necessary to have in mind a deterrent effect when sentencingin many cases involving dangerousdriving. 

24. I think, none more so than in cases involving accidents on zebra crossings.  In such cases it is necessary to drivehome the message most forcibly.  Were it otherwise, and if zebra crossings can be ignored with little consequence, how could one persuade pedestrians to forsake the convenience of crossing wherever they like, and make an effort to cross at a zebra crossing?  Furthermore, the Road Users’ Code has made clear and it is common sense, that at zebra crossings drivers should beware pedestrians trying to cross or waiting to cross, such as the elderly, the infirm, and people with children.

25. That is why we must drivehome the message to drivers that the court takes a very serious view of accidents on pedestrian crossings.  With great respect to the learned judge, the litany of absence of particular aggravating factors in para. 28 of his reasons is beside the point.  It is obvious that the Respondent had disregarded the presence of pedestrians, who had the right of way, on the zebra crossing.  It is no excuse to say that he thought he had room to pass.  The fact is he had not.  That was said to be an error of judgment.  But it was more than that.  It was no less than a conscious decision on his part not to give precedence to the pedestrians who were there.

26. Mr Plowman submitted that according to the domestic helper, the wing mirror hit her left upper arm and in falling, she pulled the deceased down.  I have already referred to the evidence of the school boy who said that the deceased was hit by the car.  I do not think the discrepancy, if it is such, matters.  Mr Plowman submitted that the impact was light, but it was forceful enough to result in the death of an old man.  I agree that this is not the worst case of its type.  For a worst case, the maximum sentencecould be 10 years.  The fact that this is not the worst case of its type does not mean that it is not seriously culpable.  Lam Siu Tongmade the point that dangerousdriving causing death which occurred at a pedestrian crossing would be a serious aggravating feature.

27. Indeed, in Lam Siu Tong, this Court said that a conscious disregard for traffic lights would likely put the case into the most serious category.  I believe a conscious disregard for pedestrians is equally, if not, more reprehensible.  There, the court said at para. 24:
“(c) The clear inference is that Wong was simply reckless : despite all the warning signs, he nevertheless continued to travel into the pedestrian crossing without slowing down, oblivious to the obvious dangers that this caused. The result was a death and injuries caused to another person.
(d)  It was almost as if the Respondent did not care whether or not his bus hit anyone at the pedestrian crossing.  He certainly decided to take a huge risk in the way he drove.”

28. The same could probably be said of the Respondent.  He ignored all the warning signs.  He saw the deceased and his domestic helper making their way slowly across the zebra crossing.  He also saw PW1.  His defence that his attention was momentarily distracted is irrelevant.  He should have slowed down or stopped long before he reached the crossing.  He had ample time to do so.  Simple humanity should impel a driver to stop for the aged, the young and the infirm whether they have the right of way or not.  Here, the deceased had the right of way.  That was ignored.  There is thus a high degree of culpability.

29. The learned judge, and Mr Plowman, SC for the Respondent, relied on the fact that the Respondent was travelling at 20-25 kilometers per hour and that the speed limit was 20 kilometers per hour.  The fact that the general speed limit is 20 kilometers per hour does not mean that approaching a pedestrian crossing, where an old man is trying to cross with the assistance of a helper, at such a speed, is not excessive.  With respect, I am afraid the learned judge has ignored the single most important fact in the case, namely, that the deceased was crossing slowly and in plain view, on a zebra crossing, when the Respondent hit him.  To be fair to the learned judge, it appeared that his attention had not been drawn to Lam Siu Tong. 

30. The prosecution put the case within the intermediate culpability range under Cooksley.  I believe it probably falls within the higher culpability range.  The sentencepassed was grossly inadequate.  I would not consider a starting point for sentenceof 4 years to be manifestly excessive.  However, in this case, with some reluctance, I have decided on a sentenceof 2½ years.  I bear in mind that this is a reviewand the Respondent would be released later this month on his present sentence.  More importantly, 2½ years already represents a 150% increase on his existing sentence.  However, the period of disqualification should be increased to 5 years.  Earlier I mentioned the Respondent’s mother’s health.  Naturally, one is sympathetic, but such mitigation can carry little weight.  In any event, having regard to the steep discount already given, no further discount could be justified. 

27.  I noted that in that case the defendant faced the more serious charge of dangerous driving causing death and that the accident occurred on a zebra crossing rather than a green man crossing controlled by traffic lights. In the present case, the injured person was crossing before the green man for pedestrians had been illuminated. None of the aggravating features mentioned in the Ordinance are present in this case.

28.  However many of  the observations made by the court are relevant to the circumstances of this case.

29.  The green man crossing was on a straight stretch of road. The driver’s view of the crossing was partially obstructed by a double decker bus stationary in the first lane. There were pedestrians waiting on the central reservation to cross the green man crossing over the carriageway the defendant was driving along. The elderly pedestrian had not just stepped off the kerb. She was hit whilst near the nearside of the third lane .

30.  There was no evidence as to which way the injured pedestrian had been walking when she was hit. A police officer attending the scene denied that the defendant told him that the injured pedestrian was crossing from his left to his right. If that were correct she had therefore crossed over two lanes before she was struck.  If she had come from the central reservation, she was well into the crossing when she was struck. On impact, she was propelled forward for several yards. She lost consciousness and sustained serious injuries which have reduced her to a state of dependency. I noted however that in respect of charges relating to victims sustaining grievous bodily harm the harm suffered by Mme Lau was not of the most serious kind.

31.  This legislation was gazetted and commenced on 17 December 2010. It is hard to conceive of circumstances in which immediate terms of imprisonment of some length would not be appropriate for this type of case.

32.  Having considered all the circumstances of the case, bearing in mind submission by learned defence counsel I am of the view that an immediate custodial sentence is called for. 

33.  As far as the imprisonment term is concerned,   I accept that this is not the worst offence of its kind and that imprisonment will be a severe blow for the defendant and his family.  However, it is a case of dangerous driving resulting in serious injury to the victim. 

34.  Having considered the whole circumstances I consider a sentence of 2 years imprisonment to be appropriate.  I disqualify the defendant from driving for a period of 4 years and order that he attend and complete a driving improvement course under the provisions of s.72A(1A) of the Road Traffic Ordinance before he is permitted to drive again.