HKSAR v. FUNG TAK WAI

DCCC 1212/2023

[2025] HKDC 321

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1212 OF 2023

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Causing grievous bodily harm by dangerous driving". He drove a light goods vehicle (LGV)  and knocked down a female road-crossing pedestrian, causing her serious injuries and rendering her a quadriplegic.

Summary of Facts

2.  The accident location was near the junction between Electric Road and Lau Li Street in North Point ("the Location").  The relevant segment of Electric Road was a one-way 2-lane road.  At the time of the accident, the weather was fine; road surface was dry; and traffic volume was medium.  The applicable speed limit was 50 km/h.

3.  The Location had no traffic lights (vehicular or pedestrian)  or any markings/facilities which signify a proper crossing for pedestrians.  No metal railings were erected on the pavement of either side of Electric Road.

4.  About 4:30 p.m. on 29 May 2023, the defendant was driving an LGV VG2103 ("the LGV")  along the 2^nd left lane of Electric Road.  At the same time, Madam Chan (PW1; aged 82)  was walking across Electric Road from the 1^st left lane to the opposite side.  When PW1 almost reached the pavement of the opposite side, the offside front of the LGV hit her. 

5.  The accident described above was captured by the LGV's car camera.

6.  As a result of the accident, PW1 sustained multiple injuries including:  3 cm laceration over forehead; 3 cm laceration over chin; deformed left forearm; fractured right inferior pubic ramus; right septal haematoma; 1 cm laceration over upper inner lip; chipped right lower incisor; concussion with retrograde amnesia; left distal radius fracture; fractured pelvis, left sacral ala, right acetabulum, bilateral superior pubic rami, right inferior pubic rami and L5 left transverse process avulsion; right forearm skin disruption; superficial abrasion over left knee and shin, and right knee; and impaired sensation over upper and lower limbs with reduced power of all limbs.

7.  In his video recorded interview, the defendant claimed that at the time of the accident, he was driving the LGV on the right lane of Electric Road and had a clear view of the road.  The middle front of the LGV hit a female pedestrian.  At the time of impact, he was looking at the direction of the MTR Station.  He had also looked at the pedestrian and had therefore braked immediately.  He drove to Electric Road to deliver goods every day.

8.  PW1 was hospitalized at MacLehose Medical Rehabilitation Centre until 27 October 2023.  She was then transferred to an elderly home and has been staying there since.  She is now a quadriplegic, except having regained movement of her left deltoid and biceps.

Mitigation & Sentence

9.  The defendant is 44 and has 2 conviction records which involved 2 violence-related offences.  He obtained his full driving licence in 2000 and has 2 traffic convictions including 1 "Careless driving" offence[1] and 9 fixed penalty tickets (2 of which were issued after the present case).  Defence counsel Mr. Yau informed me that the defendant is divorced with a daughter (aged 11), who resides with his ex-wife.  He has been a self-employed delivery driver for almost 15 years before the present accident.  He was earning $30,000 per month and contributed to his parents and ex-wife regularly each month.

10.  In mitigation, Mr. Yau explained that the defendant had to deliver goods to the same shop situated at Electric Road almost every day.  On the day of the accident, upon approaching the Location, he noticed a traffic warden patrolling on the roadside at some distance ahead.  His attention was perhaps diverted to looking for parking opportunities.  At the same time, he noticed the presence of another traffic warden at some distance ahead. At that moment, the defendant suddenly discovered PW1 appearing in front of the LGV. He immediately applied the brakes, but was unable to avoid the accident.

11.  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.

12.  I have viewed the LGV's car camera footage numerous times.  After it turning left onto Electric Road from Tsing Fung Street, PW1 had already begun crossing Electric Road and was visible as early as 16:29:35 time marker.  The time of impact was 16:29:39 time marker.  In those 4 seconds, PW1's life was turned completely upside down.

13.  Although I could not see her face, PW1's physical appearance and mobility seemed to be much younger than 82.  Her post-accident life now is no doubt tragic and sad.  From unrestricted mobility to quadriplegia in just a few seconds, it is absolutely spine-chilling.  That is the reason why the court must instil into the minds of the general public 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.

14.  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[2].  I must also consider the hardship caused to PW1 and her family as a result of her injuries as well as their grievances and resentment[3].

15.  The courts have repeatedly emphasized the importance of deterrence when sentencing in cases related to dangerous driving.  I have reminded myself of the sentencing principles[4] set out by the Court of Appeal in SJ v Poon Wing Kay [2007] 1 HKLRD 660, in particular paragraph 10(4)  "While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  In assessing the overall seriousness of a crime, culpability is often the dominant factor.  It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence…"

16.  In HKSAR v Lei Tin Seng [2011] 1 HKLRD 341, Yeung JA (as he then was)  held :-

"17. This Court has repeatedly stressed that a vehicle in the hands of an irresponsible driver is an extremely lethal weapon. A driver should always be careful when he drives so as to avoid killing/causing injuries to innocent citizens.

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19. The Court is duty bound to give out a clear message that anyone who commits the offence of dangerous driving causing death will be severely punished.

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22. This Court cannot overlook the fact that if a driver is sentenced to imprisonment for a traffic accident, that is in itself a very harsh punishment regardless of the length of imprisonment."

17.  I accept Mr. Yau's submission that no aggravating features (such as speeding, running a red light, drink driving or disobeying any traffic signs)  existed in the present case.  On the other hand, I am puzzled by the defendant's failure to notice the presence of PW1 in a timely fashion.  How could he have missed her, who was wearing a white t-shirt and a fluorescent orange backpack, in broad daylight?  I understand the car camera footage may not represent accurately the defendant's view in the driver's seat.  Be that as it may, according to the footage, he had a clear and unobstructed view of PW1 for at least 4 seconds.  Regrettably, the defendant committed a serious oversight—a mistake so serious that it cannot be treated lightly. An immediate custodial sentence is inevitable. 

18.  Mr. Yau submitted that PW1 was perhaps jaywalking.  I disagree.  I, however, accept that she might have exposed herself to some degree of danger by not paying attention to the vehicular traffic on her right side[5]. It may not seem fair, but it is a fact of life that drivers of motor vehicles are expected to carry a heavier burden in most situations when pedestrians, cyclists or motorcyclists are involved because their lives are more vulnerable if hit by a car.  In my view, it was not difficult at all for the defendant to have noticed PW1's presence as the LGV travelling forward on Electric Road.  I must ask once again "How could he have missed her?"  I consider the defendant's driving manner and attitude falling in the intermediate culpability category on the Cooksley's scale[6].

19.  The maximum sentence for the present offence is a fine of $50,000 and imprisonment for 7 years.  Having considered all relevant factors, I adopt a starting point of 18 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 12 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 12 months' imprisonment.

20.  In addition to imprisonment, I make a disqualification order for a period of 2 years[7], which will start to run from the date of sentencing[8]. I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[9].  In my view, it is unnecessary to order him to re-take his driving licence test.