HKSAR v. LAU KIT TONG

DCCC 922/2021

[2022] HKDC 837

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 922 OF 2021

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REASONS FOR SENTENCE

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Introduction

1.  The defendant is convicted upon his own guilty plea of one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance.

Facts

2.  At about 10:51 pm on 24 April 2021, the defendant was driving a taxi on the right lane of Tai Koo Shing Road westbound at Tai Koo Shing near Lamppost No 37221. There was a zebra crossing on that section of the road with flashing beacons on both sides. At the material time, there was sufficient illumination in the vicinity of the zebra crossing. The road was dry and traffic flow was medium. The speed limit there was 50 km per hour. No passenger was on board of the taxi.

3.  The camcorder of the taxi and the CCTV in the vicinity captured that:-

(i)  a female in dark colour sweater and light blue jeans, later known to be Ms Tong, first appeared at 22:51:28 hours while she stepped into the zebra crossing. Ms Tong was then talking on the phone;

(ii)  the defendant did not stop or decelerate the taxi which continued to travel towards the zebra crossing;

(iii)  at 22:51:31 hours, Ms Tong walked across the 1^st left lane and entered the 2^nd left lane;

(iv)  at 22:51:32 hours, the nearside front of the taxi collided with Ms Tong who was thrown onto the hood of the taxi; and

(v)  at 22:51:35 hours, the taxi came to a complete stop.

At all material times, the defendant had an unobstructed view to the entire zebra crossing which was right in front of the taxi.

4.  Upon enquiry, the defendant told the police that he was not aware of Ms Tong crossing the road.

5.  Ms Tong was sent to PYN Eastern Hospital immediately. CT scan of her brain showed skull base fracture, contusional haemorrhage, acute subdural haematona and mild subarachnoid haemorrhage in both cerebral hemispheres. She was noted to have progressive drop in conscious level at the night of admission. She also sustained right pelvic fracture. She was admitted into ICU to perform emergency operations (including brain intubation and drainage, and external fixator was put on to treat her fracture).

6.  Ms Tong was discharged from ICU on 28 April 2021. She was admitted to Tung Wah Eastern Hospital on 13 May 2021 for further rehabilitation. She was then admitted to Union Hospital on 10 June 2021 for further treatments. She was discharged on 7 August 2021. Sick leave was granted to her until 26 April 2022.

7.  Ms Tong needs to attend regular follow-up treatment for rehabilitation. She complained of memory loss and impairment of cognitive function. She is unable to recall the collision or the event leading to the collision.

8.  At the material time, the defendant caused grievous bodily harm to Ms Tong by driving the taxi on a road dangerously, in particular, by entering a zebra crossing without decelerating or paying due care and attention to the safety of other road users. The defendant’s driving manner fell far below of what would be expected of a competent and careful driver and it would have been obvious to that driver such driving manner was dangerous in all the facts and circumstances of this case.

The defendant’s background

9.  The defendant was born in October 1953. He is now 68. He has received education up to Form 5 level. He has worked as a taxi driver since 1989. He is married with one son and one daughter, aged 39 and 43 respectively.

10.  The defendant has a clear criminal record.

11.  As to his traffic record, he has one careless driving record sentenced in April 2017 with a fine of $1,700. He also has a record of failing to comply with traffic signals sentenced in November 2016 with a fine of $600.

Mitigation

12.  Counsel Mr Chan relied on “The Defendant’s Mitigation Submission” sent under cover of his letter dated 28 July 2022. In gist, it was submitted that:-

(i)  the defendant is the sole breadwinner of the family;

(ii)  the defendant’s wife and daughter are suffering from various illnesses so much so that their daily lives heavily rely on the defendant;

(iii)  at the material time, the defendant was not speeding or driving erratically. It was submitted and the prosecution agreed that he was travelling at a speed of around 30 km per hour. He stopped immediately after the collision. His visibility was impaired when he was driving the taxi from a brightly lit section of the road to a dim section; and

(iv)  Ms Tong has made significant recovery.

Mr Chan referred me to Secretary for Justice v Chu Wing Yin Christine [2019] HKCA 1459 and another District Court case DCCC 139/2022 but Reasons for Sentence of DCCC 139/2022 are not available yet.

Sentence

13.  In HKSAR v Lee Yau Wing CACC 282/2012, the applicant appealed against the imprisonment sentence imposed on him as a result of his guilty plea to the charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of Cap 374. The Court of Appeal in paragraphs 33 to 39 of the judgment identified sentencing principles that must be accommodated when sentencing for an offence of that nature and level of seriousness. They are the principles of retribution, deterrence and denunciation. In paragraph 39 of the judgment, the Court of Appeal said:-

“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.’”

14.  As the Court of Appeal said in Secretary for Justice v Poon Wing Kay and Anor CAAR 2/2006 & CACC 536/2005, the impact on people’s lives ought to be taken into account when sentencing. The Court of Appeal also said that courts should have regard of the fact that there might sometimes be extremely grave consequences flowing from acts of dangerous driving and it was therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving, and that one major factor to be considered as an aggravating factor justifying a heavy sentence was where a person had driven with selfish disregard for the safety of other road users or of his passengers (or of pedestrians)  or with a degree of recklessness.

15.  In paragraph 53 of the judgment in Secretary for Justice v Chu Wing Yin Christine, the Court of Appeal said that the dominant factor to be considered in sentencing for the offence of causing grievous bodily harm by dangerous driving is the defendant’s culpability, and that it involves two related assessments: the first being the objective dangerousness of the defendant’s driving and the second being the defendant’s moral culpability. It was stated in paragraph 79 of the judgment that closely allied to culpability is the harm and impact caused to the victim(s), and that it involves an assessment of the nature and degree of the really serious injury to the victim(s). Paragraph 81 of the judgment says the normal sentence for this type of offence is an immediate custodial sentence, and the length of the sentence will be determined by an assessment of the two factors of culpability and harm.

16.  In the present case, the defendant failed to decelerate or stop the taxi when Ms Tong was walking on the zebra crossing. The collision led to serious injuries sustained by Ms Tong who was hospitalized from 24 April 2021 to 7 August 2021, and she was granted sick leave until 26 April 2022, more than one year after the present incident. According to Ms Tong’s statement given on 26 February 2022, up to the date of her statement she still had to use crutches as her walking aid, that she was unable to stand up for too long, and that she had difficulties getting in or out of bed.

17.  Apart from the serious injuries sustained by Ms Tong, from the video-recordings shown to the court, it can be seen that when the defendant’s taxi reached at about 2 meters in front of the zebra crossing, the light from his taxi was already shone on Ms Tong and so at that point in time, the defendant should have noticed the presence of Ms Tong who, although wearing a dark top, was wearing a pair of light blue jeans which could be easily seen from the defendant’s seat. Yet, the defendant did not decelerate until after the collision.

18.  I have also considered the Reasons for Sentence in HKSAR v Poon Wai Luen DCCC 676/2017 in which the victim was hit by a taxi when she was riding her bicycle on the pedestrian crossing. At the material time, the traffic light was red, and the taxi driver did not slow down but continued to drive through the pedestrian crossing. The victim was thrown off the bicycle and injured. She was hospitalized for 16 days and was given 170 days’ sick leave. The sentencing judge adopted a starting point of 15 months’ imprisonment.

19.  In the present case, the defendant did not drive against red traffic light, but he did not stop or decelerate the taxi and continued to drive towards the zebra crossing when Ms Tong was already on the 2^nd left lane of the zebra crossing. Further, the injuries sustained by Ms Tong was far more serious than the victim in Poon Wai Luen case.

20.  Having carefully considered the facts of this case and the submissions given by Mr Chan, and having compared the facts in Lee Yau Wing and Poon Wai Luen with the present case, I will adopt a starting point of 15 months’ imprisonment.

21.  I give 1/3 discount to the defendant for his timely indication of guilty plea. The sentence is therefore reduced to 10 months’ imprisonment.

22.  I note that the defendant’s family may experience hardship during the defendant’s incarceration but family hardship is not a valid mitigating factor. There being no other valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 10 months’ imprisonment.

23.  I also order that the defendant be disqualified from driving for 2 years and to complete a driving improvement course at his own expense within the last 3 months of his disqualification period.