HKSAR v. LAU CHI KEUNG

DCCC 374/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 374 OF 2015

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  In these proceedings, the defendant, Lai Chi‑keung, has been convicted of one count of “Causing Grievous Bodily Harm by Dangerous Driving” upon his plea and admission of facts.

The Scene

2.  The time was some time before 2 am on 27 October 2014.  The scene of the accident was a roundabout at the junction of Tsing Fat Street and the So Kwun Wat section of Castle Peak Road. The speed limit for that section of the road was 50 kilometres per hour.  There was a double broken line road marking delineating the roundabout.

3.  According to the Road Users’ Code, double broken lines require the driver to give way to traffic on the major road.

The Driving

4.  The defendant was driving a public light bus along Castle Peak Road towards Yuen Long.  There were 14 passengers on board.  Moving at a speed of 60 kilometres per hour, the defendant drove into the roundabout without slowing down or stopping.  Instead of staying on the outer lane, the defendant entered the inner lane and then drove across the white line road marking, entered the outer lane and continued to drive towards Yuen Long.  His speed then was 64 kilometres per hour.

5.  Meanwhile, a green taxi was travelling at the speed of 30 to 40 kilometres per hour on the outer lane of the roundabout.  It was about one metre ahead of the defendant’s public light bus when the latter entered the outer lane.  Despite the taxi driver’s attempt to avoid collision by braking and swerving to the right, the defendant’s public light bus rammed into the right side of the taxi.  Both vehicles ended up on the road divider outside the roundabout.

Injuries

6.  A total of four persons suffered from injuries as a result of the accident:-

(i) The driver of the taxi suffered from head injury with diffuse axonal injury. He had transient loss of consciousness. He was hospitalised for seven days and was given sick leave for another six days. He had to attend outpatient clinic after discharge.

(ii) The passenger of the taxi lost consciousness and suffered amnesia. She was hospitalised for over a month for treatment of her head and neck injuries. She was on sick leave until 19 June 2015.

(iii) A male passenger of the Public Light Bus suffered from mild tenderness on the right leg, swelling on the right, and abrasion on the right side of his face. He was on sick leave for three days.

(iv) A female passenger of the Public Light Bus suffered from neck pain. She was on sick leave for three days.

Admissions

7.  Under caution, the defendant admitted he had been driving in excess of the legal limit (50 to 60 kilometres per hour).  He could not explain why he drove onto the inner lane.  He was not aware of either the taxi or the white continuous line marking the roundabout.

Discussion

8.  The offence carries a maximum penalty of 7 years’ imprisonment.  The authorities are clear that this kind of offence requires a deterrent sentence.  It is necessary through the severity of the sentencing order to send a clear message to the public that drivers are in charge of a lethal instrument and they will be held responsible for failing to handle them properly.

9.  In Lee Yau Wing[1], the Court of Appeal states that a dominant sentencing principle for this offence is one of deterrence.  In the judgment of the case, McWalters J further considered the approach in Cooksley[2]; (which has since been endorsed by the Court of Appeal in the Poon Wing Kay case[3]), and held that the offender’s culpability should be given prominence in deciding on the severity of the sentence.  The considerations are equally applicable to dangerous driving causing death and dangerous driving causing grievous bodily harm.

10.  In the Lee Yau Wing case, the defendant drove onto a pedestrian crossing against a red light in the belief that no one was crossing.  In fact, his vision was obscured by a stationary vehicle.  He hit an elderly pedestrian crossing the road on a flashing pedestrian green light.  The Court of Appeal took the view that the defendant’s culpability lies in his wilful refusal to stop at the red light and his taking the deliberate risk of driving onto the pedestrian crossing when his view was obscured.  A starting point of 15 months’ imprisonment, reduced to 10 on a guilty plea, was upheld by the Court of Appeal.

11.  In the case of Chan Chi Chiu Louis[4], the defendant was driving at a speed of 80 to 90 kilometres per hour on the fast lane when he collided with another vehicle driving out of a car park’s exit at a 90 degrees bend.  The speed limit for that stretch of road was 50 kilometres per hour.  At the time of the collision, the other vehicle had reached the dividing line between the slow lane and the fast lane.  The driver of the other vehicle suffered from multiple injuries to his skull, legs, pelvis, shoulders, spine, ribs, urinary tract and had to undergo three surgeries.  The passenger on the defendant’s vehicle also sustained severe injuries to his left hip and had to undergo surgeries, he had not fully recovered a year after the accident.  On appeal, his sentence was reduced from 3 years to 2 years. 

12.  This case is a much more serious one than the one at hand.

The Culpability of the Defendant’s Driving

13.  As admitted by the defendant, the defendant’s driving was dangerous because:-

(i) he did not give way or slow down at the double broken lines road marking;

(ii) he travelled at a speed over the legal limit;

(iii) he travelled in the inner lane and then crossed the white line to the outer lane without paying attention to the traffic and/or the changing conditions.

14.  I have had the benefit of studying the sketch plan (P1) made by the police officer investigating the case.  Castle Peak Road is joined at a right-angle by Tsing Fat Street in the shape of the letter “T”. The roundabout is designed to ensure the safe merging of the traffic from the two roads.  Apart from the broken white lines at the entrance of the roundabout for the westbound traffic (ie the road taken by the defendant), there are also “Give Way” signs on both sides.

15.  In my view, the defendant’s culpability lies with his excessive speed and wilful disregard of the traffic signs.  It is not a case of momentary lapse of judgment or loss of concentration.  However the facts of the case before me are not the worst of its kind.

The Impact of the Poor Driving

16.  I note that there is no evidence to suggest any the four victims suffer permanent injury, but the fact that they have been granted sick leave means that they must have at least suffered disruptions of their lives and have been put to much inconvenience and discomfort.

17.  I do not consider comparing the facts of the other cases to the one before me to be of much assistance.  I doubt one can find an identical case with identical circumstances.  However, the cases referred to above do give me the perspective on the proper sentence.

18.  In my view, a term of imprisonment of 15 months will be of sufficient deterrence as well as properly reflecting the defendant’s culpability.

Mitigation

19.  I take into account what has been said in his mitigation by his lawyer and the contents of the background report prepared by the probation officer.  I accept that the defendant, a 59-year-old man, has been earning a living as a driver for over 20 years.  Apart from a few minor traffic violations, his driving record has been good.  He is divorced with two grown-up children.  He is now in a new relationship.  He has been supporting his ex-wife and girlfriend, both of them having health issues.  His ex-wife, children and girlfriend all spoke well of him as a kind-hearted, hard-working and responsible caregiver and provider of the families.  The present case seems to be a single incident of misjudgment.  I also accept that he is remorseful by his plea of guilty.

20.  Yet I cannot overlook the fact that the defendant was at the time in charge of a public light bus filled to its full capacity of 14 passengers.  He owed a duty to his passengers and other users of the road.  Four people had suffered injuries as a result of his driving.

21.  Since the focus is on the culpability of the defendant’s driving, his clear record and good character carry little weight. The only valid mitigation is his plea of guilty.

22.  I therefore reduce his sentence to 10 months’ imprisonment to take into account his guilty plea, and, as an act of compassion, I am going to reduce 2 more months from his sentence to reflect the court’s appreciation of his being a good person.

Disqualification

23.  There is a mandatory disqualification for no less than 2 years unless there is a special reason, not to make such an order.  The defence has seen fit not to make any submission on this point. From the facts of this case, I do not see any special reason; although I accept that having been a driver all his life, a disqualification order would mean that he would have to find other means of making a living.

24.  This reason alone is not a special reason, and bearing in mind the circumstances of this case, I order the defendant be disqualified from holding or obtaining a driving licence for 2 years.

25.  Under section 72A(1A) of the Road Traffic Ordinance, I also order the defendant to attend and complete a driving improvement course within the last 3 months of his disqualification.  I will also put on record my warning that the order places a duty on the defendant to make arrangement to attend and complete the course on his own initiative. No one will remind him to do so, and any failure to comply with such an order may result in prosecution by the police.