HKSAR v. CHU SIU WAH

DCCC 1090/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1090 OF 2013

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Causing grievous bodily harm by dangerous driving". The defendant drove a taxi and the victim is a 10-year-old boy.

Summary of Facts

Location of the Accident

2.  Lai Wan Road is a 2-lane carriageway; one lane being northbound, and the other, southbound.  The 2 lanes are separated by a median barrier, which is a flower bed.  The speed limit is 50 km per hour.  At the time of the accident, the weather was fine and the road surface was dry and in good repair.  Lighting was proper and visibility was good.

The Accident

3.  Prior to the accident, the defendant was driving a taxi ("the Taxi") northbound along Lai Wan Road with no passenger on board.

4.  Shortly after 8:00 pm on 20 April 2013, a 10-year-old boy YU (PW1) was crossing Lai Wan Road from east to west towards Lai Chi Kok Park via a pedestrian crossing ("the Pedestrian Crossing").  At that time, he was with his 11-year-old elder brother (PW2). The Pedestrian Crossing was controlled by traffic lights and was painted with yellow zebra lines.

5.  PW1 and PW2 waited until the pedestrian traffic light having turned green before they started crossing the road.  As they began crossing, PW2 walked faster and reached the other side (i.e. outside Lai Chi Kok Park) when PW1 was only at the central reservation.  PW2 waved at and gestured PW1 to walk faster.  PW1 looked to his left (the direction of on-coming traffic) and saw the Taxi approaching.  PW1 looked at the pedestrian traffic light and found that it was still green.  He thus continued to cross the road.  At that time, PW2 also noticed that the vehicular traffic light at the Pedestrian Crossing was red.

6.  When PW1 was roughly at the 2^nd to 3^rd yellow zebra lines counting from the central reservation, the Taxi jumped the red light without slowing down.  It went past the Pedestrian Crossing knocking down PW1 with a "bang" sound.  The front offside of the Taxi hit PW1 and the impact pushed him a few metres away.  The Taxi braked and stopped about 2 to 3 car lengths beyond the Pedestrian Crossing at an angle toward its nearside.

7.  Madam SHEK (PW3) was another pedestrian crossing Lai Wan Road from east to west at that time.  When she reached the side of Lai Chi Kok Park, she heard a braking sound and a "bang" sound from behind.  She immediately turned around and saw PW1 lying on the road surface of northbound Lai Wan Road, whilst the Taxi had stopped aside with its offside front light broken.  PW3 rushed towards the injured PW1 and looked at the pedestrian traffic light at the Pedestrian Crossing.  She saw the "green man" illuminated and was not even flashing.

8.  At the scene, the Police made enquiries with the defendant.  He explained "It was a green light when I was almost entering the traffic light junction.  Someone on the left waved for a taxi, so I drove forward.  And then there was a sudden 'bang' sound on the right and I felt that I collided into something, so I immediately stopped and saw the kid falling onto the ground and was thrown to 2 metres away.  I got off the car to check immediately."

9.  The defendant elaborated further on how the accident happened in his video recorded interviews.  He added that when he saw a pedestrian waving for taxi, he started to feel "blurred".  He could not see anything until he collided with an item which he later knew to be a kid.  It was until the collision that he was "woken up".  Upon being "woken up", he intuitively swerved to the left and applied the brakes.

10.  PW1 was hospitalized for 11 days.  He had a fractured left shaft of femur (thigh bone) and was given sick leave from 20 April to 14 May 2013.  Physiotherapy is required for rehabilitation.

Mitigation & Sentence

11.  The defendant is 59 and has a clear criminal and traffic record.  He has been licensed to drive since 1978 and only has 6 fixed penalty violations.  He has been a taxi driver for over 30 years.  In view of the defendant's decent background, defence counsel Mr. TSOI invited me to obtain a Community Service Report in order to give both the court and the defendant one more option.  Sentencing was therefore adjourned until today pending the report.

12.  Mr. TSOI informed me that the defendant entered into his 3^rd marriage in 2012.  His 3^rd wife and his stepson (11 years old) both reside in the mainland; they rely on the defendant for financial support.  All 3 children from his 1^st marriage are supportive of the defendant, regarding him as a family man.  The defendant's 1^st wife passed away in 1998 and he financed the living of his 3 children by himself.  The eldest daughter from his 1^st marriage is now pregnant and her due date is in March this year. 

13.  A bundle of mitigation letters was placed before me; their contents are duly noted.

14.  In the course of mitigation, Mr. TSOI submitted that right before the accident, the defendant had a momentary loss of concentration because he was distracted by someone who was waving for a taxi. Mr. TSOI stressed that the court needs not speculate on the reason for the defendant's mentioning of sudden "blurred" vision in his video recorded interviews.  Instead, the court should treat the defendant's immediate response at the scene[1] as the most accurate version of the events.

15.  Mr. TSOI also submitted that the defendant was cooperative with the Police after the accident.  Furthermore, the defendant has stopped driving his taxi and now lives on social welfare.  His 3^rd wife and his stepson, who are his dependants, are also suffering financially.

16.  Regarding PW1's latest condition, Mr. LEUNG for the Prosecution informed me that PW1 received an operation to remove the screws in his leg yesterday.  The doctor takes the view that when the wound is healed, PW1 should be able to walk unaided.  There is, however, a risk of his legs growing to uneven lengths since PW1 is still a young boy.

17.  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]

18.  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]

19.  I bear in mind that the maximum sentence for the present offence 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.  In fact, given the age of PW1 and all the medical reports before me, I would proceed on the basis that the boy has recovered fully for the purpose of sentencing.  Modern medical technology should be able to treat the problem of legs growing to uneven lengths.  On the other hand, I can imagine the pain and suffering as well as inconvenience a 10-year-old boy would have to experience arising from his injuries.

20.  The cause of the accident is the defendant's driving through a red light 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 father, the offence he committed is a serious one and cannot be treated lightly.  In my view, an immediate custodial sentence is inevitable.  A Community Service Order is simply wrong in principle and not in proportion to the gravity of this case.

21.  I accept that the defendant is a law-abiding citizen and has maintained a good driving record in the past 30 odd years.  The court, however, must stress that driving (whether in a professional or recreational capacity) is a privilege–a privilege with great responsibilities attached.  The offence committed by the defendant is a serious one.  In the course of sentencing, the court needs to bear in mind the principles of retribution, deterrence and denunciation in order to arrive at a punishment which is balanced, proportionate and just.[4]

22.  I have considered long and hard as to the appropriate punishment.  It is not an easy task to send someone like the defendant, who has been a decent person all his life, to prison.  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.

23.  I have reminded myself of the Court of Appeal's decision in HKSAR v LEE Yau Wing, CACC 282/2012.  The defendant in the present case drove through a red light, but I would give him the benefit of doubt that he was distracted by someone who was waving for a taxi.  I would not treat it as a deliberate jumping of a red light.  Hence, I adopt a starting point of 9 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 6 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  Thus, the sentence I pass is 6 months' imprisonment.

24.  In addition to imprisonment, I make a disqualification order for a period of 3 years (the disqualification period will start to run from the date of sentencing[5]). I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period. [6]