HKSAR v. CHU KWAI ON

DCCC 551/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 551 OF 2013

____________

____________

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

REASONS FOR SENTENCE

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

1.  The defendant pleads guilty to one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Chapter 374.

2.  In summary at about 0730 hours on the 25 November last year the defendant was driving a public light bus when he knocked down Mr Ng Cheung Shan who was crossing the pedestrian crossing at the junction of King’s Road and Tong Shui Road.  At the time it was raining and the road surface was wet.

3.  A taxi driven by Mr Fong Sze Yuen was travelling in the same direction.  As Mr Fong approached the junction the traffic light was amber and therefore Mr Fong slowed down and stopped.  At this point whilst the pedestrian light was still red Mr Ng stepped on to the crossing.  As he passed the taxi the pedestrian light turned to green.  The defendant however jumped the red light and collided with Mr Ng knocking Mr Ng 10 meters from the point of collision.      

4.  The police arrived shortly afterwards.  The defendant having stopped his minibus after the collision was arrested.  Under caution the defendant admitted, inter alia, that he jumped the red light because he was in a hurry; he did not notice anyone on the pedestrian crossing; about 40 meters from the junction the traffic lights were green therefore he did not pay further attention to the lights and started to tidy up the notepads above the dash board; he did not pay attention to the colour of the traffic light when passing the junction; and first noticed Mr Ng when the bus reached the middle of the pedestrian crossing.

5.  Mr Ng was rendered unconscious and was taken to hospital where he was resuscitated with emergency surgery.  Mr Ng was then transferred to the Intensive Care Unit. Mr Ng suffered from a fracture to the eye, face and head resulting in Mr Ng being hospitalised for 23 days. 

6.  In R v Boswell [1984] 3 All ER 35 the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death.  These factors were revised in R v Cooksley [2003] RTR 32.  Whilst in Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in Cooksleyas applied in the Secretary for Justice v Poon Wing Kay & another [2007] 1 HKLRD 660 emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  I am satisfied this approach is equally appropriate to the offence of causing grievous bodily harm by dangerous driving (see HKSAR v Lee Yau Wing CACC 282/2012). 

7.  This principle was repeated in Secretary for Justice v Lau Sin Ting CAAR 3/2010 where the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice (see paragraph 36 of the judgment).

Aggravating features

8.  The aggravating features in this case are the offence took place at a pedestrian crossing; the defendant’s attention was avoidably distracted by tidying up the notebook on the dashboard; the defendant was the driver of a public transport vehicle although I note at the time there was only one passenger who left immediately after the incident and therefore appears not to have been injured (see HKSAR v Hui Wang Chin CACC 158/2012); and Mr Ng was seriously injured for which he spent 23 days in hospital.  In considering the degree of injuries sustained I note that said in HKSAR v Lui Chung Tak CACC 221/2012 that it is not helpful to compare the various injuries which amounted to grievous bodily harm save where a dramatic level of injury may have an impact on sentence. 

9.  As Mr Cheung has aptly described in mitigation Mr Ng has remarkably made a full recovery from his injuries save he has to attend a follow up appointment next year for injuries to his eyes.  Mr Ng says his eyesight is quite normal and everything was said to be fine when attending hospital earlier this month.  Mr Ng has been able to resume work but expresses a fear when seeing vehicles, in particular minibuses. 

10.  In Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, a case of dangerous driving causing death, the Court of Appeal held that the disregarding of traffic lights when approaching a pedestrian crossing would be regarded as a serious aggravating feature and that a conscious disregard for traffic lights would likely put the case into the most serious category.  This was referred to in Lee Yau Wing the first reported case on sentence for causing grievous bodily harm by dangerous driving. 

11.  In Lee Yau Wing the defendant slowed down at a pedestrian crossing but did not stop when the traffic light was red.  The defendant continued travelling forward when he could not see if any pedestrian was using the crossing and hit a 75 year old lady but without knocking her down.  This caused a fracture of the right knee of the old lady.  The Court of Appeal in upholding a starting point of 15 months imprisonment said that by proceeding forward knowing vision was obstructed revealed a wilful refusal to stop and deliberate risk-taking in allowing the vehicle to edge forward onto the crossing.  The court said this exhibited a conscious disregard for the traffic lights.

12.  The degree of seriousness depends on the precise circumstances of the driving as can be seen from the case of HKSAR v Lui Chung Tak where a higher sentence was held to be appropriate notwithstanding the court held the driving was not a conscious disregard for traffic lights.  The driver of a light goods vehicle had passed through the crossing when the traffic light had turned red for one second, having been on amber for three seconds.  As he did so he knocked down an 83 year old female pedestrian who had crossed before the green man for pedestrians was illuminated.  The court reduced the sentence from 2 years to one of 20 months imprisonment.

13.  The present case is in my viewmore serious than both Lee Yau Wing and Lui Chung Tak.  I am satisfied the defendant consciously disregarded the traffic lights by paying no further attention to the lights as he tidied up the notebook on the dashboard.  Unlike the defendant in Lee Yau Wing, who slowed down, the defendant droveat a speed, albeit within the speed limit, which knocked Mr Ng for 10 meters resulting in his injuries.

14.  Further on his own admission the defendant was in a hurry so he jumped the red traffic light.  The defendant says that about 40 meters from the junction he no longer paid attention to the traffic lights.  This would be about six vehicle lengths from the traffic lights.  The video film taken by the taxi, which had stopped at the traffic lights, shows that the traffic light, which was clearly visible to the defendant, change to amber at 01:04:24 and about six seconds later at 01:04:30 shows the bus knocking down Mr Ng. 

15.  Unfortunately the video does not show when the traffic light turns to red or when the green pedestrian light comes on and I have not been told the sequence of the traffic lights.  However a driver must stop when the amber light shows unless he is so close to the crossing that to do so may cause an accident.  That is not the case here the defendant having more than sufficient time to stop once the light turned to amber.  The fact that it was raining at the time meant the defendant should have proceeded with even greater care.  The defendant clearly had no intention of slowing down and by proceeding through the traffic lights took an unnecessary and wholly avoidable risk. 

16.  Although like the pedestrian in Lui Chung Tak Mr Ng initially stepped onto the crossing before the green man was illuminated the pedestrian light was green by the time Mr Ng reached the front of the stationary taxi.  Whilst the video film taken by the taxi actually shows that Mr Ng ran onto the crossing, no doubt due to the fact it was raining, I am nevertheless satisfied that Mr Ng is in no way at fault and that his initial stepping onto the crossing when the green man was not illuminated does not in the circumstances reduce the culpability of the defendant.  The video clearly shows Mr Ng waited until the taxi stopped before he ran onto the crossing.  Pedestrians seeing one vehicle stop before the traffic lights can expect other vehicles to do the same.    

Mitigating factors

17.  In passing sentence I take into account everything said on behalf of the defendant by Mr Cheung together with the content of the background report.  I take into account that the defendant is genuinely remorseful for his actions and that since the accident he has suffered from anxiety and insomnia; experienced flashbacks of the accident and lost a lot of weight.  As a consequence the defendant says he will not drive again and has since the accident taken up employment as a delivery worker.  Letters of support are submitted by both his new and former employer.  

18.  I also take into account the defendant’s good traffic record having no traffic convictions and only three fixed penalties since obtaining his driving licence in 1983, although I note one of the fixed penalties is for failing to comply with a traffic signal and another one for speeding.   

19.  I take into account the defendant has no previous convictions and has led a responsible life looking after his family.  The background report and letters from his employers show how well the defendant is thought of.  Sadly the majority of offenders who come before the court on charges of dangerous driving causing death and causing grievous bodily harm by dangerous driving are law abiding citizens of good character.

20.  Having considered all the circumstances of the driving I am satisfied that the proper starting point after trial is one of2 years and 6 months imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 8 months imprisonment.

Disqualification

21.  There is mandatory disqualification of not less than 2 years for causing grievous bodily harm by dangerous driving unless the court for special reasons decides not to make such an order.  I find there are no special reasons not to order the defendant to be disqualified.  I am satisfied taking into account the circumstances of the driving that a period of 4 years disqualification is appropriate.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 4 years.

22.  By virtue of section 72A (1A) of the Road Traffic Ordinance a court shall order a person convicted of causing grievous bodily harm by dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order.  Again there are no special reasons not to make the order.  The defendant is ordered to attend and complete a driving improvement course at his own cost within the last three months of the disqualification period. 

23.  The defendant is warned that it is an offence not to attend and complete the driving improvement course and that he remains disqualified until he attends and completes the driving improvement course notwithstanding the disqualification period may already have ended.