HKSAR v. LAM HO WING

DCCC 24/2022

[2022] HKDC 937

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 24 OF 2022

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REASONS FOR SENTENCE

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

2.  The accident occurred at the junction of Tonkin Street and Un Chau Street, Sham Shui Po, Kowloon, which was controlled by traffic lights, and involved a public light bus bearing registration mark VM 3123 (the "Minibus")  and a light goods vehicle bearing registration mark EX 9118 (the "LGV").  The defendant was the driver of the Minibus and Mr WONG Hoi-wing ("PW1")  was the driver of the LGV.

3.  At the material times, the weather was fine, the road surface was dry and the traffic volume was low.  The speed limit of the scene was 50 km/h.

4.  At around 6:30 am on 1 April 2021, PW1 was driving the LGV in the middle lane of Tonkin Street to deliver some poultry to Nam Cheong MTR Station.  After waiting for a while before a set of red traffic lights, PW1 drove the LGV forward after the traffic lights had turned green to enter the junction at the scene.  When the LGV reached the middle of the junction, the Minibus suddenly appeared and rammed into the left side of the LGV.  As a result, the LGV side-turned on its right side.

5.  At the material times, there were 9 passengers (including PW2 to PW7)  on board the Minibus which was travelling in the middle lane of Un Chau Street.  The traffic lights governing the Minibus was red before the Minibus entered the junction.  Despite that some passengers had shouted to alert the defendant that the traffic lights were red, the defendant did not apply the brake at all and drove the Minibus into the junction at the speed of about 40 to 50 km/h which then rammed into the LGV.

Injuries

6.  Upon medical examinations, PW1 and all 9 passengers on board the Minibus sustained injuries of various degrees.  All of them suffered relatively minor injuries except the following 2 passengers who sustained serious injuries:

(a)  Ms HUI Wei-yee, Christine ("PW3")  sustained bruises and tenderness over left face and left upper arm, tenderness over thoracolumbar spine, left orbital floor fracture, oblique fractures at the lower back with mild bone separation and oedema around. She was admitted into 2 hospitals for 6 days and granted sick leave for 21 days. After the incident and as of 25 July 2022, PW3 still often feels numb and sore at her back and could not carry heavy items.

(b)  Mr LAM Chung-fat ("PW4")  sustained chest bruise on left upper side, left elbow fracture and right knee mild abrasion. Surgery was done for the elbow fracture. He was admitted into hospital for 12 days and granted sick leave for 83 days. He complained of persistent numbness over his left hand after being discharged from the hospital. After the incident and as of 23 July 2022, PW4 still often feels weak and numb on his left hand and could not carry heavy items.

7.  The defendant also sustained multiple injuries over his chest, abdomen, pelvis, left leg and right wrist, with liver lacerations and pelvic-acetabular fracture, for which he had undergone operations.  He was discharged from the hospital on 30 April 2021.

Arrest and Cautioned Interview

8.  After the defendant was discharged from the hospital, he was arrested on 11 May 2021.  In a subsequent cautioned interview, under caution, the defendant stated, inter alia, that:

(a)  at the material times, the weather was fine, the road surface was dry, the visibility was clear and the traffic volume was low;

(b)  the mechanical operations of the Minibus was normal;

(c)  he was at the time driving the Minibus from Tsz Wan Shan to Mei Foo with 9 passengers on board;

(d)  he was travelling in the middle lane of Un Chau Street at about 50 km/h when he was approaching the junction;

(e)  as he saw that the traffic light governing his lane was green, he drove straight into the junction and shortly afterwards collided with the LGV; and

(f)  he then passed out and only regained his consciousness 4 days later at the hospital.

Investigation

9.  The dash camera of PW1’s LGV captured that the traffic lights governing the LGV had turned green for about 15 seconds before the LGV was hit from the left and side-turned on its right at the junction.

10.  The Transport Department confirmed that the traffic lights at the junction were working properly at the material times.

11.  Upon examination of the LGV and the Minibus by the Motor Vehicle Examiner, no mechanical defect was found on them.

The Defendant's Driving Manner

12.  In this case, the defendant’s driving manner was dangerous:

(i)  The defendant had driven the Minibus to pass the red lights at a speed close to the upper speed limit of the scene; and

(ii)  The defendant failed to keep proper lookout for other road users and rammed into the LGV at the middle of the junction.

13.  The defendant's driving manner fell far below that of a competent and careful driver and it would be obvious to a competent and careful driver that driving in such a manner was dangerous in all the particular facts and circumstances of the case.  The defendant's collision with the LGV caused PW3 and PW4 grievous bodily harm.

14.  The defendant aged 62 and his only criminal record was years ago.  According to Rehabilitation of Offenders Ordinance, I can simply ignore it.

15.  For traffic record, he had 2 careless driving in 2015 and 2017 and had 4 other traffic violations where fixed penalty of fine were imposed accordingly.

16.  Ms Sujanani submits that the defendant started to work as a minibus driver since 2003, earning about $15,000 per month.  And he had no habit of drinking nor taking drugs.  As a result of the accident, Ms Sujanani says that the defendant also suffered serious injuries where different operations had been conducted and he had been stabilised in intensive care unit for some days, and discharged from the hospital about a month after the incident.  After the accident, the defendant did not drive again and now got a stable job.

17.  As to the offence, it is submitted that the defendant did not drive over the speed limit and when approaching the junction, some vehicles nearby were unloading goods and there were people on the roadway, which drew his attention, and he just failed to look at the traffic light and also failed to notice the contents of the passengers' shouting.  Ms Sujanani says it was just a momentary error of judgment and inattention rather than deliberate jumping the red light.

18.  When referring to the Court of Appeal case in HKSAR v Chu Wing Yin Christine CAAR 5/2018, it is submitted that other than the defendant was driving a public service vehicle, there seems no other aggravating factor in this case.  Ms Sujanani also refers to a number of cases including HKSAR v Kwan Wan Ki CACC 5/2019, HKSAR v Lee Yeung Chi Richard DCCC 26/2017, HKSAR v Chan Man Wai Raymond DCCC 147/2018 and HKSAR v Ng Sheung Yee DCCC 328/2020, and it was further submitted that with reference to all the above cases, community service order might be a suitable option for sentence.

19.  And as to the period of disqualification, Ms Sujanani has no particular submission on that area.

20.  And lastly, a letter of the defendant’s old friend, Mr Wong, was submitted, saying that the defendant is a responsible and diligent driver and also a caring and good father and husband and asks for a lenient sentence.

21.  Dangerous driving causing grievous bodily harm is a serious offence which attracts maximum sentence of 7 years’ imprisonment.  As stated above in the case of Chu Wing Yin Christine, the Court of Appeal had also set out the steps and consideration when approaching sentence.

22.  First, the objective assessment of the dangerousness of the offender’s driving and his moral culpability.

23.  Secondly, the aggravating factors including:

(i)  the extent and nature of the injuries inflicted;

(ii)  the number of people put at risk;

(iii)  the degree of speed;

(iv)  the extent of intoxication or of substance abuse;

(v)  whether there was erratic or aggressive driving;

(vi)  whether there was competitive driving or showing off;

(vii)  the length of the journey during which others were exposed to risk;

(viii)  whether there was any ignoring of warnings;

(ix)  whether the offender was escaping police pursuit;

(x)  the degree of sleep deprivation;

(xi)  whether the offender failed to stop;

(xii)  the fact that the offence took place at the pedestrian crossing; and

(xiii)  whether the offender was driving a public service vehicle.

24.  The court also said, had there been evidence of deliberate jumping red light, 2 years’ imprisonment should be imposed.  But in that case the court did not find such evidence, however the respondent did not slow down as approaching pedestrian crossing and went through the red light, 18 months’ imprisonment was adopted as the starting point.

25.  In the present case, likewise, the defendant did not slow down and went through the red light straightly as approaching the junction.  Objectively, Sham Shui Po is a busy district, but at that time it was quite early at about 6:30 am.  Even if there had been other vehicles nearby unloading goods which might draw the defendant’s attention, but at the same time, it would not have been acceptable for the defendant still driving close to the speed limit when crossing the junction.  It was not just a momentary lapse of attention.

26.  The aggravating factors will obviously include that the fact that it caused serious injuries to 2 passengers, whom they had been undergoing different operations and hospitalised for 2 ½ days and 12 days, and sick leave was granted for 21 days and 83 days respectively, 2 victims now still often feel numb on the injured areas.

27.  Obviously, the defendant had been driving a public service vehicle, there were 9 passengers on-board where the defendant had put at risk.  It was lucky after seeing the captures of the camera and photos that only 2 passengers suffered serious injuries.  The defendant had been driving close to the speed limit and there had been passengers’ warning as well.  No doubt the defendant had also got 2 previous careless driving’s record.

28.  After considering all the above evidence and mitigation factors, it is not an appropriate case for community service order.  And I assess that the proper starting point should be 15 months’ imprisonment.

29.  However, given all the background circumstances including that the defendant had clear record and he also suffered serious injuries from the accident, I will adopt a starting point of 12 months’ imprisonment instead, and that be reduced to 8 months’ imprisonment after guilty plea.

30.  As to the disqualification period, considering all the background circumstances, I assess that 3 years’ disqualification is appropriate.

31.  Lastly, the defendant also had to attend a driving improvement course within 3 months before the expiration of the disqualification period at his own expenses.

32.  So the defendant's sentence is 8 months’ imprisonment, disqualification for 3 years and also has to attend driving improvement course.