HKSAR v. LEE YEUNG CHI, RICHARD

DCCC 26/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 26 OF 2017

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty to a charge of "Causing grievous bodily harm by dangerous driving". He drove a private car and hit a female pedestrian (aged 49) at a crossing regulated by traffic lights.

Summary of Facts

2.  The traffic accident occurred at the pedestrian crossing near No.342 Jockey Club Road in Fanling ("the Crossing").  Jockey Club Road ("the Road") is a 2-way carriageway with 2 lanes for each direction.  There is a divider separating the vehicular traffic of each direction.  At the time of the accident, the road surface was dry and the traffic flow was moderate.

3.  About 4:55 p.m. on 21 June 2016, Mr. LO (PW1) was at the Crossing waiting for the pedestrian traffic light to turn green.  He starting crossing the Road after the light turned green.

4.  Madam KO ("the Victim") was also crossing the Road on PW1's left, slightly in front of him.  When PW1 had taken 2 to 3 steps onto the Crossing, the Victim reached the 2^nd lane of the Road.  At that moment, a private car (MK6631) driven by the defendant appeared. It was moving along the 2^nd lane and went past the Victim.

5.  PW1 heard a sound of collision and saw the Victim swivelling to the left and falling onto the ground.  The defendant's car moved forward for about 50 metres before stopping and reversing to the roadside. 

6.  Mr. NG (PW2) was driving a lorry along the 1^st lane of the Road.  The vehicular traffic light was turning amber when he was 5 to 6 car lengths away from the Crossing.  PW2 stopped for the red light behind a private car.  There were no vehicles on the 2^nd lane at that time.  About 3 to 4 seconds later, the defendant's car, which was travelling along the 2^nd lane, went past PW2's lorry.  The defendant's car did not slow down and continued moving onto the Crossing.  PW2 then saw the Victim lying on the ground at the Crossing.

7.  At the time of the accident, the pedestrian traffic light at the Crossing was green and the vehicular traffic light was red.  Both sets of traffic lights were functioning normally at that time.

8.  The Victim was sent to Nethersole Hospital in Tai Po.  She was suffering from head injury and shoulder pain.  X-ray revealed right shoulder joint dislocation and a fracture of her right 3^rd and 4^th ribs.  She remained at Nethersole Hospital for a week and was transferred to Tai Po Hospital for rehabilitation until 14 July 2016.  She was granted sick leave for 17 days.

Investigation

9.  PC 1570 (PW3) was the 1^st officer to arrive at the scene.  The defendant told PW3 that he was driving along the 2^nd lane of the Road.  There were other cars on the 1^st lane but none on the 2^nd.  He did not notice the traffic light and once he reached the Crossing, the Victim suddenly walked out from his left and was hit by the left side mirror of his car.

10.  In a cautioned interview conducted on 27 June 2016, the defendant admitted, inter alia, that before the accident, he was driving his car along the 1^st lane of the Road.  As he approached the Crossing, he saw a van stopped in front of him, whilst the 2^nd lane was empty.  He therefore moved onto the 2^nd lane.  Upon reaching the 2^nd lane, he saw a private car in front of the van on the 1^st lane.  When driving past the Crossing, the defendant heard a noise coming from his left.  He then saw the left side mirror of his car having folded backward and the Victim lying on the ground.  The defendant claimed that he did not notice the Victim before the accident.

Mitigation & Sentence

11.  The defendant is 62 and has a clear criminal record.  He has been licensed to drive since 1980 and has received only 2 fixed penalty tickets for speeding in 2012 and 2014.  For the purpose of sentencing, I treat him as a person with an impeccable driving record for almost 37 years.

12.  Defence counsel Mr. YUEN informed me that the defendant began his career in the Architectural Services Department in 1978 as a Works Supervisor and retired as a Chief Technical Officer in 2014.  He is married with 3 adult children.  His 2 daughters are respectively a teacher and an accountant; his son studies Civil Engineering at a local university.

13.  In mitigation, Mr. YUEN submitted that the defendant's mother passed away about a year ago.  His younger brother had a stroke and suffers from kidney failure, requiring dialysis every day.  His father (aged 95) insists on residing in the New Territories by himself.  On the day of the accident, the defendant was on his way to pay regular visit to his father.  Mr. YUEN also submitted that the Victim was hit by a side mirror of the defendant's car and she appears to have been fully recovered without any permanent physical disabilities[1]. Mr. YUEN stressed that the accident was a one-off out of character episode in the defendant's 30 odd years of driving experience.  There is no evidence of speeding and the defendant's culpability is relatively low.

14.  A bundle of mitigation documents was placed before me; their contents are duly noted.

15.  In recent years, the courts have repeatedly emphasized the importance of having in mind a deterrent effect when sentencing in cases involving dangerous driving.  I have reminded myself of the sentencing principles[2] set out by the Court of Appeal in SJ v POON Wing Kay [2007] 1 HKLRD 660.

16.  The cause of the accident in the present case is the defendant's failure to stop a pedestrian crossing regulated by traffic lights.  I do not see anything improper for him to switch to the 2^nd lane of the Road, which was empty at the time; he was entitled to do so.  What he did wrong was he failed to notice the vehicular traffic lights and the presence of the Victim at the Crossing.  There is no evidence showing a deliberate disobedience of a red light by the defendant or driving at an excessive speed.  I am inclined to accept that it was the defendant's momentary lapse of attention.

17.  The courts have repeatedly stressed that driving (whether in a professional or recreational capacity) is a privilege–a privilege with great responsibilities attached.  It is a message which cannot be stressed enough.

18.  To the victim(s) and their families, a traffic accident which involves fatalities or serious personal injuries must be one of the most tragic events which could happen to them.  It saddens me each time when I need to deal with a case in which someone has lost his/her life or has been seriously injured as a result of a traffic accident.

19.  In SJ v LAM Siu Tong [2009] 5 HKLRD 601, the Court of Appeal 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..."[3] 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."[4]

20.  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[5].  I must also consider the hardship caused to the Victim's family as a result of her injuries as well as their grievances and resentment[6].

21.  The defendant has maintained an impeccable driving record for 37 years.  He has served the general public of Hong Kong for 36 years and raised 3 children.  In the past 2 years, he had to look after his aged father and sick younger brother.  Comments in his Community Service Order Report are favourable.  After careful consideration, I take the view that a Community Service Order is the appropriate punishment in this case.

[Requirements of Community Service Order explained. The defendant understood and is willing to comply.]

I sentence the defendant to 200 hours of Community Service.

22.  In addition to a Community Service Order, I make a disqualification order for a period of 2 years[7]. I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[8].  In my view, it is unnecessary to order the defendant to re-take his driving licence test.